MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON LABOR AND MANAGEMENT

 

      Sixty-seventh Session

      April 22, 1993

 

The Assembly Committee on Labor and Management was called to order by Chairman Chris Giunchigliani at 3:45 p.m., Thursday, April 22, 1993, in Room 321 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

COMMITTEE MEMBERS PRESENT:

 

      Ms. Chris Giunchigliani, Chairman

      Mr. Bernie Anderson, Vice Chairman

      Mr. Douglas A. Bache

      Mr. John C. Bonaventura

      Mr. John Carpenter

      Mr. Tom Collins, Jr.

      Mr. Peter G. Ernaut

      Mr. Lynn Hettrick

      Mrs. Erin Kenny

      Mr. John B. Regan

      Mr. Michael A. Schneider

 

COMMITTEE MEMBERS ABSENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Mr. Frank Krajewski,

      Mr. Donald O. Williams,

 

OTHERS PRESENT:

 

      Ms. Debbie Cahill, Nevada State Employees Association,

      Mr. Floyd Mundt, Preventative Maintenance Manager, Clark County School District,

      Mr. Patrick McHenry, Maintenance Coordinator for Washoe County School District,

      Mr. Dale Sanderson, Washoe County School District Plant Facilities Administrator,

      Mr. Danny Thompson, Nevada AFL-CIO,

      Mr. David Going, Department of Industrial Relations,

      Ms. Donna Lewis, Administrator of Division of Enforcement for Industrial Safety and Help (DEISH),

      Mr. Stan Warren, Southern California Edison,

      Mr. Henry Etchemendy, Executive Director of Nevada Association of Nevada Association of School Boards,

      Ms. Annie Barclay, President of Education Support Employee Association, Director for Nevada State Education Association, and Director for National Education Association,

      Mr. Harry Bradley, Chief of Benefits for the Nevada Employment Security Department,

      Mr. Bob Ostrovsky, Nevada Resort Association,

      Ms. Lynn Grandlund, ASA, EON, NAIB, and GWC

      Mr. George McNally, Nevada Trial Lawyers Association,

 

 

A.B. 286 -  Requires certain persons who represent employer or employee before appeals officer in matter relating to workers' compensation to meet certain continuing legal education requirements.

 

Mr. Ernaut reported on subcommittee findings on AB 286.  The subcommittee recommended deletion of the entire section dealing with being licensed and certified (Exhibit C).  He stated the employer/employees labor unions should be responsible for hiring qualified people.

 

Mr. Bache questioned Mr. Ernaut regarding whether the amendment deleted a person representing someone without compensation.  Mr. Ernaut responded it did.

 

Mr. Anderson commented he and Mr. Ernaut had discussed the amendment and Mr. Anderson believed Mr. Ernaut had carried out the intent of the bill which was to provide the opportunity for other groups that had developed some level of expertise, even though they were not attorneys, to be able to come before an appeals officer and carry out their functions.

 

Chairman Giunchigliani asked for a motion to amend and do pass.  Mr. Ernaut interjected in Exhibit C under section (a) it was the intent a person had to be represented by the specific trade organization.  If hired by one, a person could not represent someone in another trade organization.

 

      ASSEMBLYMAN ERNAUT MOVED TO AMEND AND DO PASS ON AB 286.

 

      ASSEMBLYMAN ANDERSON SECONDED.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

AB 398 -    Requires licensing of operators of large boilers in schools.

 

Debbie Cahill, Nevada State Education Association, testified before the committee and proposed amending the bill line 4, subsection 1, by changing the word "output" to "input."  She then introduced Mr. Floyd Mundt, Preventative Maintenance Manager for Clark County School District, representing skill trades people on Education Support Employees Association Board of Directors, and member of Nevada State Education Association Board of Directors.

 

Mr. Mundt stated serious consequences had resulted from boiler explosions.  He showed the committee photographs of a boiler explosion at Mammoth Lakes, California last November.  Mr. Mundt asked the state provide licenses to insure high standards and training of individuals responsible for monitoring of equipment.

 

Ms. Cahill stated they were aware of many of the concerns of people present to testify on the bill and they were willing to work with a subcommittee, if the bill was sent to a subcommittee, and review amendments. 

 

Mr. Carpenter indicated $148,480 was necessary to do the required licensing in Washoe County, and asked what it would cost for licensing in Clark County or other areas.  Ms. Cahill responded they took issue with the quoted dollar figure, but had no amount in mind.

 

Mr. Regan questioned Mr. Mundt regarding whom would do the training and certification, if it would be DOT (Department of Transportation).  Mr. Mundt explained the training would be conducted by individual school districts unless regulations specified otherwise. 

 

Mr. Regan then asked if Mr. Mundt had figures on the numbers of deaths caused by boiler explosions during the past five years.  Mr. Mundt did not have figures, but believed one child's death was too many.  Mr. Regan agreed.

 

Chairman Giunchigliani requested Mr. Mundt clarify BTU's for the committee.  Mr. Mundt explained a British Thermal Unit was the amount of heat required to raise one gallon of water one degree Centigrade.  The figure of 2,500,000 was taken from an earlier bill, and Mr. Mundt believed it was a good figure to use for the size requirement.  The American Society of Mechanical Engineers had requirements adopted by the State of Nevada.  This insured licensees were trained in all requirements.

 

Mrs. Giunchigliani related the issue as being a threshold for boiler size.  Mr. Mundt concurred.

 

Mr. Carpenter raised the question of whether the current employees working in the district were trained.  Mr. Mundt maintained currently the National Association of Power Engineers occasionally conducted classes at UNLV.  In his district there was no training for boiler operators.

 

Chairman Giunchigliani stated for the record three committee members were school teachers, but we had no conflict.

 

Mrs. Giunchigliani called Patrick McHenry, Maintenance Coordinator for Washoe County School District.  His testimony is attached hereto as Exhibit D.

 

Mr. Collins questioned Mr. McHenry regarding why they stopped licensing.  Mr. McHenry pointed out the State Industrial Commission stopped issuing licenses approximately two and one-half years ago, stating it was too costly and too much of a burden.  Mr. Collins remarked, "better hands do a better job" and training provided this.  Mr. McHenry acknowledged he understood, and Washoe County did provide a boiler training program formulated from the old state licensing requirement procedures combined with recommendations of its own insurance carrier. 

 

Mr. Anderson asked if boilers currently in schools were inspected by any professional, even on an annual basis.  Mr. McHenry stated they were.  The insurance carrier inspected the boilers annually.  All safety apparatus and controls were inspected twice a year by trained technicians.  All work on boilers was done by well qualified technicians.

 

Mr. Regan inquired how many schools were within Mr. McHenry's area of responsibility.  Mr. McHenry responded 73.  Mr. Regan further questioned Mr. McHenry regarding how many of the schools actually had boilers and the ages of the boilers.  Mr. McHenry did not have figures readily available but guessed the oldest boiler on site was probably about 25 to 30 years old.  The average age was about 22 years.  Several have been rebuilt.

 

Ms. Giunchigliani questioned if Mr. McHenry's problem with the bill was the cost of the licensing process.  He stated it was. Also, he had concerns regarding costs of reclassification of employees who were licensed.  Ms. Giunchigliani then asked what the charge was of the licensing in the past and how often relicensing was required.  Mr. McHenry advised he did not remember the initial charge of licensing but it was a two year license.

 

Chairman Giunchigliani then commented if an employee was given a certificate of training she did not see an upgrade would be required, it would only be a standard added to the employee working on the boiler.  Mr. McHenry contended as a representative of the classified association, if a night custodian was going to be required to be licensed at school "A" but not at school "B", then as a condition of employment, the night custodian licensed at school "A" was required something other than the other school.

 

Mr. Hettrick asked Mr. McHenry if he was aware of any boiler explosions in Nevada.  He said he was not.  Upon further discussion Mr. McHenry indicated in his estimation it would be better to use definition of horsepower rather than BTU.

 

Mr. Dale Sanderson, Washoe County School District Plant Facilities Administrator, submitted Exhibit E as testimony.  He indicated the district currently had a boiler training program and concurred with testimony given by Mr. McHenry. 

 

Mr. Collins discussed with Mr. Sanderson the safety impacts of the bill and asked if he agreed.  Mr. Sanderson reiterated their problem was with the fiscal impact, not the safety or training. 

 

Assemblywoman Kenny apologized for not understanding the mechanical aspects of a boiler and asked for some clarification of the workings of a boiler.  Mr. Sanderson obliged to the best of his ability.  Mrs. Kenny then questioned if it was more likely an accident would occur during the daytime.  Mr. Sanderson supposed that was a fair statement.  Mrs. Kenny inquired as to the cost of an accident.  Mr. Sanderson was not able to give a figure but stated the major concern was loss of life. 

 

Mr. Carpenter asked if the state inspected the boilers.  Mr. Sanderson responded the state did not, the insurance inspector was responsible for inspection. 

 

Chairman Giunchigliani remarked safety was the number one concern of everyone, better trained people to prevent accidents was the intent of the bill.  She thanked Mr. McHenry and Mr. Sanderson for testifying.

 

Mr. Danny Thompson representing AFL-CIO testified on behalf of AB 385.  It was Mr. Thompson's contention boilers were extremely dangerous and everyone should come under this bill, not just schools.  Mr. Thompson concluded by saying he wanted to participate in the subcommittee on this bill.

 

Next to testify was Mr. David Going, Department of Industrial Relations.  Mr. Going distributed Exhibit F and expressed support of the bill.  He proposed an amendment to extend licensing requirements to all boiler operators in public and commercial buildings. 

 

Ms. Donna Lewis, Administrator of Division of Enforcement for Industrial Safety and Help (DEISH), also supported AB 398 and stressed the importance of qualified or licensed personnel.  She believed a program through the college would ensure proper training.

 

Mr. Carpenter asked why the original licensing program was dropped.  Ms. Lewis responded there was no legislative mandate to do licensing.  Certificates had been issued, not licenses.  It was never a "license" to guarantee the quality of the person.  DEISH was never authorized by the legislature to issue a license.  DEISH licensed insurance inspectors only.  DEISH inspected boilers for businesses that did not have insurance, approximately half of the boilers in the state.

 

Mr. Stan Warren, Southern California Edison, commented he wanted to work with the subcommittee on this bill.

 

Chairman Giunchigliani closed the hearing on AB 398 and appointed a subcommittee consisting of Mrs. Kenny, Mr. Collins, and Mr. Regan.

 

AB 351 -    Removes disqualification for unemployment compensation of certain educational employees for specified periods of unemployment.

 

Ms. Debbie Cahill, Nevada State Education Association, came forward to testify in support of AB 351.  She emphasized the bill did not deal with teachers or administrative personnel, it dealt with classified employees only.

 

Ms. Annie Barclay, President of Education Support Employees Association, Director for Nevada State Education Association, and Director for National Education Association, read the following testimony.

 

"Last year Congress removed one barrier to an incredible period of institutionalized discrimination.  Ten years ago Congress passed legislation prohibiting unemployment compensation for nine and ten month educational employees whose assignments were terminated during the summer.  Education employees were the only group addressed and affected by this amendment.  Last year Congress partially corrected this inequity when it passed enabling legislation which permitted but did not mandate that state could extend such protection.  While we are sympathetic to the fiscal impact of school districts today, and especially the fiscal impact of this particular bill, we would like to share with you the impact of failing to act on this amendment. 

 

"In Clark County there are 2,500 employees who work ten months or less.  Of these, 82 percent are female and 40 percent are ethnic minorities.  They are not computer programmers, plumbers or accountants.  They work with children.  They are food service workers, instructional assistants, health aides.  Many, many are the heads of single parent homes.  So what happens to them when the paychecks stop?  They choose to cancel their children's health insurance, they stop paying their rent, they begin to look for other ways to pay utilities, but mostly they just look for work.  But work is extremely hard to find right now.  Work is especially hard if you are a middle-aged woman looking for a two or three month position, and especially hard if you are a woman of color. 

 

"Why do they accept the jobs in the first place?  For most the chance to work with children is a chance to do something they passionately believe in.  Often they are people who with other breaks in life might have become teachers.  For these employees their work with children reflects their dedication to the community, but that dedication comes with a price tag for them personally.  Since they have devoted themselves to children, when the children leave, so do their paychecks. 

 

"Their choices are simple; abandon the jobs that they love and try to find a job that doesn't penalize for their choice, or stay home and penalize their own children during the summer.  Unfortunately for them they care far more about the system than the system care about them or their children. 

 

"In closing, please let me assure you that we recognize the serious fiscal restraints in this state today.  We come to you today to offer you a new set of challenges.  As you deliberate, we hope to keep before you the very real picture of the people in the schools today and the effect that a failure to adequately fund education is having."

 

Chairman Giunchigliani asked what percentage was women and what percentage was minority.  Ms. Barclay responded 82 percent of the group were female and 40 percent were ethnic minorities.  They fall in the bottom fourth of the pay scale.  These persons were nine and ten month clerical people, instructional assistants, physical education assistants, health aides, bus drivers, anyone who worked a schedule revolving around the school year.

 

Ms. Giunchigliani questioned if when Congress removed the barrier several years ago it affected the Fair Labor Standards Act or was it a separate issue.  Ms. Barclay stated it was a separate issue.

 

Mr. Anderson stressed the need and concern for this piece of legislation.  He stated his concerns revolved around money.  First, if legislation was pushed into place, what would be the fiscal impact overall?  Secondly, would it lead to a reduction in force of ancillary personnel required in the classroom in order to meet the fiscal requirements?  Ms. Barclay agreed there was a significant fiscal note attached, around $2 million for Washoe County, approximately $5.5 million for Clark County.  One proposed alternative was community partnership, where school districts acted as placement services. 

 

Mr. Anderson inquired if research was done to determine the number of employees who tried to find summer employment.  Ms. Barclay suggested 90 percent sought employment. 

 

Chairman Giunchigliani called attention to the fact many of these employees were utilized two, four, etc. hours per day.  Ms. Barclay concurred and further stated this practice had increased.  The collective bargaining agreement stated if an employee worked four hours or more they were entitled to benefits.  There was an increase in employees only working 3.9 hours.

 

Mr. Collins asked if persons were subject to call back if work was available.  Ms. Barclay stated they were not.

 

Mr. Ernaut presented fiscal data received from Washoe County School District (Exhibit G), Carson City School District (Exhibit H), and White Pine County School District (Exhibit I), and insisted the districts could not afford these additional costs.  Ms. Barclay requested the legislature file this with the list of pressing issues to be dealt with and when money became available in July, the money be dedicated to this need.  She proposed if money was not made available, an amendment be written suggesting school districts begin to identify a plan to deal with this issue.  In the interim, she wanted the legislature to encourage the school districts to be engaged in activities to place employees in other employment until they were fiscally able to provide coverage. 

 

Mrs. Kenny questioned Ms. Barclay regarding the percentage of these employees who were working mothers.  Ms. Barclay believed roughly half were working mothers. 

 

Mrs. Kenny suggested one possibility she proposed was a year-round paycheck as teachers were allowed to do.  Ms. Barclay had attempted to work with the districts to do this.  She claimed most working mothers could not afford the reduction.  For some employees this was a viable alternative. 

 

Chairman Giunchigliani summarized the previous testimony and asked Ms. Barclay if she worked with the districts on their budgets for the upcoming legislative session, or if this also needed to be raised as an issue.  Ms. Barclay responded most employee associations in the state worked with school districts in two fashions, one being collective bargaining and the other informal budget input. 

 

Mr. Bache requested explanation regarding employee notifications to return to their positions in the fall.  Ms. Barclay explained beginning May 1 through May 15, employees received pink slips indicating they had a reasonable assurance of a job in the fall.  The same employees received notification they were eliminated and were in the surplus pool.  If they did not have a position by October 1, they were out of a job.  While the pink slip guaranteed the possibility of a position in fall and allowed school districts not to provide unemployment compensation, the district knew approximately 150 to 250 per year were surplused and there would not be positions before Christmas, if at all. 

 

Chairman Giunchigliani announced no action would be taken on the bill and asked the audience if anyone desired to be acknowledged as being present to testify on the bill.  Mr. Patrick Henry, presented Exhibit J to be entered into the record.

 

Mr. Harry Bradley, Chief of Benefits for the Nevada Employment Security Department, read Exhibit K for the committee, registering opposition to AB 351.  Mr. Bradley stated, "If an individual, a non-professional individual, with a school district in the state was provided reasonable assurance to return to that school district in the fall and that did not take place, they would be entitled, then, to benefits and they would be entitled to benefits retroactively."

 

 

Chairman Giunchigliani noted the following persons present:

      Mr. Jim Nelson appeared in opposition to AB 351;

      Dr. Patti Hawkins, representing Carson, Douglas, Lyon and Churchill County Schools, opposed;

      Mr. Tom Stauss, Washoe County School District, opposed.

     

 

A letter from Mr. David Lannigan, Superintendent Eureka County School District, was entered into the record as Exhibit L, and Mr. Henry Etchemendy, Executive Director of Nevada Association of Nevada Association of School Boards, presented Exhibit M to be entered into the record.

 

The hearing was closed on AB 351.

 

A.B. 385 -  Creates cause of action for death of or substantial bodily injury to employee caused by employer's willful violation or gross negligence related to occupational safety.

 

Mr. Bernie Anderson presented testimony in support of AB 385 and entered Exhibit N into the record.

 

Mr. Danny Thompson, AFL-CIO, testified in support of AB 385.  He related an incident in Henderson, Nevada in 1968-69 where a plant using benzine was negligent in repairing numerous benzine leaks.  This resulted in an explosion, severe burns and one death.  The victims had to file suit against a third party to collect damages, when in actuality the employer was negligent.  AB 385 resolved this problem.

 

Mr. Ernaut questioned why this bill struck down half of exclusive remedy.  Why was it not available to the employer to bring action against an employee who showed gross negligence?  Mr. Thompson responded in a worksite situation the employee was required to act as the employer required.  Mr. Ernaut agreed but stated the employee had the opportunity to be as grossly negligent as the employer.  Mr. Anderson pointed out this legislation would require employers to manage employees more effectively in terms of safety. 

 

Mrs. Kenny questioned whether most industrial companies carried insurance protecting grounds and/or buildings.  Mr. Thompson stated some did and some did not.  If the company owned the building, often they were self-insured.

 

Mr. Hettrick agreed with Mr. Ernaut, if it was opened beyond exclusive remedy, then both sides had to be considered. 

Chairman Giunchigliani referred AB 385 to the Safety/OSHA subcommittee consisting of Assemblymen Anderson, Hettrick, and Collins. 

 

Mr. Bob Ostrovsky, Nevada Resort Association, asked Exhibit O be entered into the record. 

 

Ms. Lynn Grandlund asked to have Exhibit P be entered into the record.

 

Mr. Bache asked for a definition of difference between negligence, gross negligence and willful misconduct or willfully violate, and substantial bodily harm.

 

Mr. George McNally, Nevada Trial Lawyers Association, expressed there were numerous definitions for gross negligence, but Black's Law Dictionary provided a definition.  As for substantial bodily harm, it was language similar to if a person was involved in an accident with a blood alcohol level of .10 or greater and the person caused death or substantial bodily harm, it constituted a felony.  This language had been litigate for over 10 years as to what constituted "substantial bodily harm."  Willful misconduct or willfully violate referred to an intentional act.

 

Mr. Scott Young, SIIS, acknowledged Mr. Bache touched on an important point the committee should consider.  In the law there was a significant difference between gross negligence and willful or reckless conduct. 

 

Memorandum from Carol A. Jackson, Director, Department of Industrial Relations, was entered as Exhibit Q.

 

There being no further business to come before committee, the meeting was adjourned at 6:15 p.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      LINDA BLEVINS

      Committee Secretary

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Assembly Committee on Labor and Management

April 22, 1993

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