MINUTES OF THE meeting
of the
ASSEMBLY SUBCommittee on Commerce and Labor
Seventy-Second Session
March 24, 2003
The Subcommittee on Commerce and Labor was called to order at 4:40 p.m., upon adjournment of the Assembly Commerce and Labor meeting, on Monday, March 24, 2003. Chairman John Oceguera presided in Room 4100 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. John Oceguera, Chairman
Mr. Bob Beers
Mr. David Parks
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Vance Hughey, Principal Policy Analyst
Wil Keane, Committee Counsel
Sharee Gebhardt, Committee Secretary
OTHERS PRESENT:
Richard Daly, Business Manager, Laborers Local Union 169
Danny Thompson, Executive Secretary/Treasurer, AFL-CIO, Nevada
Jack Jeffrey, Legislative Advocate, Southern Nevada Building & Construction Trades Council
Chairman Oceguera called the Subcommittee meeting to order at 4:40 p.m. All members were present. He opened the hearing on A.B. 143 and asked Mr. Hughey to review the amendments.
Assembly Bill 143: Makes various changes to labor laws and powers and duties of Labor Commissioner. (BDR 53-465)
Vance Hughey, Principal Policy Analyst, Research Division, Legislative Counsel Bureau, referenced Exhibit C, a report entitled “Subcommittee on Assembly Bill 143.” He said he prepared the report to delineate the different issues heard in the previous Subcommittee meeting and he hoped that he had accurately captured the positions of the different parties. Essentially, he said, page 2 of the report provided the amendment offered by the Labor Commissioner. He noted there were four items on that proposed amendment. He said page 3 was a copy of the Northern Nevada Carpenters/Contractors provision. Mr. Hughey said it appeared to him that the amendment offered by the Labor Commissioner satisfied all of the concerns raised during the March 12 hearing before the full Committee. He indicated items 3 and 4 of their amendment were also proposed by the Carpenters’ Union. Mr. Hughey mentioned that Garth Sevdalis’ comment from the previous Subcommittee hearing seemed to be off point from the original bill, but said his suggestion to amend Section 16 of the bill to prevent employers from entering into agreements to not hire each other’s employees was included at the bottom of page 1 of the report. Mr. Hughey concluded that it appeared to him that all other provisions of A.B. 143 were non-controversial. He said he would accept any comments or suggestions.
Chairman Oceguera asked whether the combined provisions of 1 and 2 of the Subcommittee report would incorporate everything that was said.
Mr. Hughey said he did not think so. He advised that he thought page 2 of the report, the Labor Commissioner’s proposed amendments, would cover everything. He said the first page of Exhibit C showed the two recommendations by the Carpenters’ Union, which he believed were included in the Labor Commissioner’s amendments.
Chairman Oceguera clarified that the Labor Commissioner addressed the Carpenters’ concerns in his proposed amendment. Mr. Hughey confirmed.
Chairman Oceguera asked whether, by adopting the Labor Commissioner’s proposed amendments, the Subcommittee would cover everyone’s concerns.
Mr. Hughey said that was his understanding.
Assemblyman Beers pointed out that the Carpenters/Contractors’ document, on page 3, of Exhibit C, referred to the imprecise description of “within a reasonable time,” which he noted the Commissioner had fixed in bullet point 2 of his proposed amendment on page 2 of Exhibit C. He said, if they could adopt the Commissioner’s language, that would make the issue of “reasonable time” moot.
Assemblyman Parks said he had no questions or concerns.
Chairman Oceguera addressed the audience to inquire whether there were any questions or concerns on A.B. 143. He noted agreement from the audience. He said he believed the Labor Commissioner’s proposed amendment was well explained at the previous Subcommittee hearing. He stated that several representatives from the Labor Commission had testified previously. He also advised Lori Ashton, in the audience, that there had been testimony that represented her views that supported the proposed amendment.
Assemblyman Beers suggested they return A.B. 143 to the Committee with an Amend and Do Pass recommendation. Assemblyman Parks agreed.
Chairman Oceguera clarified that the motion was to add the Labor Commissioner’s proposed amendment to the bill. Mr. Hughey and Mr. Keane advised that was agreeable to them. Chairman Oceguera closed the hearing on A.B. 143 and opened the hearing on A.B. 141.
Assembly Bill 141: Makes various changes concerning enforcement of provisions requiring payment of prevailing rate of wages on public works. (BDR 28-464)
Mr. Hughey stated that this bill was more contentious. Referencing Exhibit D, page 1, he said he had outlined the four major issues of the bill identified by the Chairman. He said while reviewing his notes, he had also identified two additional issues, which he included on page 1.
Mr. Hughey said the first major issue regarded returning the statutory language on page 2, line 17, of Nevada Revised Statutes (NRS) 338.030(2)(b) to “support” rather than “substantiate.” He said his notes indicated that the Labor Commissioner and the representatives of the Laborers’ Union and the Carpenters’ Union were agreeable to that change. He referenced pages 2, 3, and 5 of Exhibit D.
Chairman Oceguera interjected to clarify that those in the audience were nodding their support of that change. Some members of the audience indicated they were not in support of the change. Mr. Oceguera advised Mr. Hughey to continue and they would return to the issue later for more discussion.
Mr. Hughey discussed the second major issue, which dealt with the frequency of the prevailing wage survey. He noted on page 2, line 10, of A.B. 141, the recommendation was to amend NRS 338.030(2) to change the frequency from “annually” to “biannually.” He said he believed he heard the representatives of the Carpenters’ Union and the Labor Commissioner agree to the change, but he said Danny Thompson had indicated the proposal had not been discussed with the majority of the labor organizations. He said he believed Mr. Thompson was going to meet with his representatives and return with further comments.
The third issue, Mr. Hughey advised, was on page 2, lines 33 and 34, of A.B. 141. The suggestion was to leave in the bill the current wording regarding “any matters officially noticed.” He noted that the language was supported by the Labor Commissioner and opposed by the other parties.
Mr. Hughey explained the fourth issue was to add a new provision to A.B. 141 to amend NRS 338.060 to indicate that 50 percent of the forfeitures collected, pursuant to Section 1, would be deposited with the Office of the State Treasurer for credit to the construction education account created pursuant to NRS 624.580. He said the AGC had indicated that they favored that amendment. He said he believed the Labor Commissioner had indicated some opposition to that change.
Mr. Hughey said the other two issues were also identified on the first page of Exhibit D. He referenced page 2, lines 9-12, which would amend NRS 338.030(2) to expand the survey to include labor organizations under certain circumstances. He said he believed the Laborers’ Union supported the amendment, but he had also heard a comment that it could be omitted. The Labor Commissioner, he said, was opposed to the measure.
Mr. Hughey said the final issue was also on page 2, after line 24, of A.B. 141. It added a provision requiring that evidence be “liberally construed” when the Labor Commissioner received an objection. This was to ensure that a disputed determination would be decided based on the evidence presented at a hearing. He said that language was favored by the Laborers’ Union and opposed by the Labor Commissioner. He concluded that he believed all other provisions of the bill were non-controversial. He said he hoped that Exhibit D accurately captured the provisions of the parties.
Chairman Oceguera thanked Mr. Hughey for his work on the bill and added that it made the Subcommittee’s task easier to have the issues clearly committed to writing. Mr. Oceguera opened discussion on the first issue.
Richard Daly, Business Manager, Laborers Local Union 169, said the Laborers, the AFL-CIO, the Northern and Southern Building Trades, and the Associated General Contractors of America (AGC) were opposed to the language, “other matters noticed.” He said the same parties were also opposed to the “annual” versus “biannual” survey. The AGC’s provision to amend NRS 338.060 was supported by the Laborer’s Union, Northern and Southern Building Trades and the AFL-CIO. Mr. Daly said his provision to amend NRS 338.030 was supported by the same parties. He added that he believed everyone supported the other non-controversial language amendments. He said that included the 10 to 15 days and the provisions in the last paragraph of A.B. 141. He offered to distribute a handout stating his position if the Chairman desired.
Chairman Oceguera responded that it would not be necessary, that he had written Mr. Daly’s comments onto the existing page 1 of Exhibit D. He asked Danny Thompson if he had gathered any additional information regarding the second issue, the change in frequency of the prevailing wage survey.
Danny Thompson, Executive Secretary/Treasurer, AFL-CIO, Nevada, said he opposed changing the survey to a biannual time frame, observing that the “whole world could change in two years.” He said the AFL-CIO preferred the yearly survey.
Assemblyman Beers said that he had spoken earlier to Mr. Daly, who had related that the federal survey was infrequent. He said that in categories where the federal government had a contract on which to rely, they increased annually in accordance with the contract, but in categories where was no contract, they kept the rate flat. Mr. Beers asked, if that was the nature of his objection, was it possible to go to a biannual process whereby those with a contract would rely on the contract for the off-year increase. He added that the wages of those without a contract could be increased on a factor, such as inflation or economic growth, so as to eliminate the yearly survey expense.
Mr. Thompson conceded that they had not discussed that. He added that one of his group’s concerns was what would happen if someone got a pay increase during that period. He said the increase would be “left behind” if they changed the language to every other year. He said they had not talked about the end results if they added a provision to cover those types of situations.
Jack Jeffrey, Legislative Advocate, representing Southern Nevada Building & Construction Trades Council, said he believed Assemblyman Beers’ proposal was something they could consider. He said his concern was that there were times when, especially in smaller counties, the wage was set by a very small number of hours. He advised those numbers changed from month to month. He expressed concern that the results from that survey period would be relied upon for the following two years. He noted discrepancies might be due to something as simple as someone failing to turn in the survey forms. He opined that to have the workers pay the price for two years for that type of negligence could be devastating. Mr. Jeffrey said what it actually did was put the signatory contractors out of the bidding process if the union rate did not prevail. He noted that the union rate generally prevailed, but he cited a case where the painters did not complete a project. Their contractors did not turn in the results. He said they finally got it straightened out but that would have put their contractors out of bidding for two years.
Chairman Oceguera noted that the Subcommittee would have to make some tough decisions.
Assemblyman Beers summarized his thoughts on A.B. 141. He said the first provision, replacing “substantiate” with “support,” did not appear to be contentious. The second issue, he suggested, should be omitted and no change made. He said he sided with the Labor Commissioner on the third issue because he had not received a satisfactory explanation of the problem with the language “any matters officially noticed.” He said his understanding from the opposition was that the language was “vague and suspicious,” but he had not heard any concrete examples of how it was problematic. He said, regarding the fourth issue, that he would probably side with the Labor Commissioner. He said he believed that the fifth issue was not very contentious and could be omitted. Lastly, Mr. Beers noted the sixth issue was the most difficult to resolve.
Chairman Oceguera agreed and said the sixth issue would need further discussion.
Assemblyman Parks said he agreed with the other Subcommittee members on the first three issues. He said he still had concerns regarding the fourth issue; he did not have a problem with the fifth issue, expanding the survey; and he said he still had concerns with the sixth issue.
Chairman Oceguera asked for clarification regarding “expanding the survey” in the fifth issue.
Assemblyman Parks responded that he did not have a problem with expanding the survey.
Assemblyman Beers asked the Labor Commissioner where the forfeiture money currently was directed that they were discussing putting into the construction education account.
Mr. Johnson said that the money currently reverted back to the public body. Assemblyman Beers queried if that was the General Fund; Mr. Johnson confirmed it went to the General Fund.
Assemblyman Beers asked whether schoolbooks were included. Mr. Johnson said it conceivably included schoolbooks. He noted that scheme had been in effect for over 65 years. He said if the Committee was willing to divert those forfeiture penalties, they should be diverted in a way that would help working families. He suggested they should create a fund that would help the Labor Commissioner in cases where wages were not collected due to a bankrupt business or similar circumstances. He concluded that if they were going to divert the money, contrary to what they had done for 65 years, they should use it to help working families.
Chairman Oceguera asked whether this was part of the deal for the support from AGC, and whether this was a “deal breaker” if that language was not included. He said he would agree with the members of the Subcommittee on the first issue; he was opposed to the second issue, the biannual survey; he favored the language “any matters officially noticed” in the third issue; he had no problem with the fourth issue, omitting the State Treasurer language; however, he said, he would hate to see that be a deal breaker. He opined that the fourth issue could be resolved another time. Mr. Oceguera noted that everyone was in agreement that the fifth issue could be omitted. He said it seemed that only the sixth issue was still in contention.
Mr. Hughey summarized that he believed everyone was in agreement to return the wording to “support” instead of “substantiate.” He said they all agreed to leave out the proposed change to a “biannual survey.” He said they also all agreed to retain the “any matters officially noticed” language. He said he thought Assemblyman Parks favored retaining the language in the fourth issue, and the other two Subcommittee members favored omitting that language.
Assemblyman Parks said he had been “leaning that way,” but he was not strongly in favor of it. He stated his ambivalence on that provision.
Mr. Hughey said he understood the same thing on the fifth issue, that Mr. Parks favored the proposal to expand the survey and the other two members preferred to omit that provision.
Assemblyman Parks confirmed that was his preference for the fifth issue. He said he thought he had heard something in previous testimony as to justification to expand the survey, but he had no major concern.
Mr. Daly said he believed that everyone was opposed to the “matters officially noticed.” He advised that he would still oppose that language if it went to the full Committee. He repeated that the Northern and Southern Building Trades, AGC, AFL-CIO, and Laborers all favored the two amendments. He advised if A.B. 141 went forward with the Labor Commissioner’s language, his group would oppose it. He said they could just as well stop the bill now.
Chairman Oceguera asked for clarification regarding the “two amendments.”
Mr. Daly said he was referencing the amendment to NRS 338.060, which the AGC suggested, and the amendment to NRS 338.030, which would have the Labor Commissioner survey labor unions. He said they also favored the “liberally construed” language. He said those provisions were mutually supported by the Northern Building Trades, Southern Building Trades, Laborers’ Union, AFL-CIO, and the AGC. If those provisions were omitted, he advised, those people would be opposed to the Laborer Commissioner’s language.
Chairman Oceguera said he understood Mr. Daly’s position, but that he believed the language was not ambiguous. He said he did not see where their amendments furthered the purpose of A.B. 141.
Mr. Thompson said he believed there was some confusion because not everyone in the audience had Exhibit D. He noted members in the audience had a similar document, but not the same one the Subcommittee was using. He advised that the AFL-CIO adamantly opposed the third issue and that previous testimony substantiated their opposition to the language, “any matters officially noticed.” He said the unions were concerned that the language was overly broad.
Chairman Oceguera advised everyone that copies of Exhibit D were available at the sign-in desk.
Assemblyman Beers asked Mr. Johnson whether the sixth issue changed the law to deal with a specific event.
Mr. Johnson responded in the affirmative that that appeared to be the case. He said he did not see the reasoning, upon review, and they could reinsert the original language. He said he did not see the need or purpose to expand that section. He recalled they had all worked together a few years ago when they drafted the regulations regarding how the wage survey was to function. He said he believed that part of the system worked fine. He repeated he did not see the need for the language.
Assemblyman Beers queried if this was the part about which Mr. Daly felt he got a “raw deal” with both Mr. Johnson and the district court. Mr. Johnson confirmed that it was.
Chairman Oceguera stated that the Subcommittee could go to the full Committee with their consensus on three or four issues and advise the Committee that the remaining issues were still contentious. He suggested that Mr. Hughey could explain their position on the non-agreed-upon issues.
Assemblyman Beers suggested they return A.B. 141 to the Committee with an Amend and Do Pass recommendation. The amendments, Mr. Beers advised, would include:
Assemblyman Beers noted that would leave provision/issue number three as an area that was unresolved, citing Mr. Thompson’s adamant opposition to that issue.
Chairman Oceguera said that apparently Mr. Daly adamantly opposed the fifth and sixth issues. He stated that he could not support the sixth provision. He said he could support the fifth provision with what Mr. Beers had said, and leave the sixth provision unresolved.
Assemblyman Beers said he would modify his suggestion to the Committee accordingly. Assemblyman Parks agreed.
Chairman Oceguera noted that not everyone was satisfied. He said hopefully everyone could work on the bill some more. He said their discussion was about building consensus and they had not attained that. He advised that not everyone would get what he wanted, and, unfortunately, the bill would die without consensus.
Chairman Oceguera closed the hearing on A.B. 141 and adjourned the meeting at 5:13 p.m.
RESPECTFULLY SUBMITTED:
Sharee Gebhardt
Committee Secretary
APPROVED BY:
Assemblyman John Oceguera, Chairman
DATE: