The 1st meeting of the Interim Joint Committee on Labor and Industry was held on Thursday, June 15, 2006, at 10:00 AM, in Room 131 of the Capitol Annex. Representative J.R. Gray, Co-Chair and Senator Alice Forgy Kerr, Co-Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Alice Forgy Kerr, Co-Chair; Representative J R Gray, Co-Chair; Senators Julian M Carroll, Brett Guthrie, Denise Harper Angel, Ray S Jones II, Jerry P Rhoads, Richie Sanders Jr, Katie Stine, and Jack Westwood; Representatives Joe Bowen, C B Embry Jr, Bill Farmer, Charlie Hoffman, Dennis Horlander, Joni L Jenkins, Thomas Kerr, Charles Miller, Russ Mobley, Rick G Nelson, Jim Stewart III, and Brent Yonts.
Guests: LaJuana Wilcher, Secretary, Environmental and Public Protection Cabinet (EPPC); Susan Bush, Commissioner, Dept. For Natural Resources, EPPC; Jim Zimmerman, Executive Director, Division of Employment Standards, Dept. Of Labor; Marjorie Arnold, Program Manager., Division of Employment Standards, Dept. Of Labor; Les Renkey, General Counsel, Dept. Of Labor; Bert May, Legislative Liaison, Kentucky League of Cities (KLC); Joe O’Nan, Member Services Representative, KLC; Michael “Howdy” Kurtsinger, member, Ky Fire Commission; and Bruce Roberts, President, Kentucky Professional Firefighters Association.
LRC Staff: Linda Bussell, CSA; Adanna Hydes; Melvin LeCompte; and Ashli Schmidt, Committee Assistant.
Co-Chair Gray welcomed members to the first meeting of the Interim Joint Committee on Labor and Industry for the 2006 Interim. Co-Chair Gray informed members that Betty Davis, a long term staff member of the Labor and Industry committee retired at the end of May and commended Ms. Davis for her service. Linda Bussell, Committee Staff Administrator, gave a brief overview of the reference materials included in the members' folders.
Co-Chair Kerr said the agenda consisted of an update on coal mine safety and an overview of a firefighter overtime issue. She said the issue of coal mine safety is one of major importance to the committee especially with the alarming number of coal mine fatalities in Kentucky. The 2006 General Assembly enacted legislation that should go far in improving coal mine safety in Kentucky and that federal legislation was also recently enacted which should supplement the legislation enacted in Kentucky. Because of the recent fatalities, Secretary Wilcher and her staff were invited to provide the committee with an update on coal mine safety and to provide her views as to the impact that the recently enacted legislation will have on preventing or reducing fatalities in the future.
Secretary Wilcher said coal mine safety was an issue of vital importance to all Kentuckians especially the family and friends of the 15,000 coal miners in the Commonwealth. Secretary Wilcher summarized the events of May 20 at Kentucky Darby #1 mine in Harlan County. On May 20, six coal miners went to work in the Darby mine, but only one came out alive, which was the worst Kentucky mining disaster since 1989 in which ten miners were killed. She noted that since the Darby fatalities occurred on the heels of the West Virginia Sago tragedy, coal mine safety has come to the forefront of the national conscience.
Secretary Wilcher said even before the Sago and Darby mine disasters, Kentucky has provided leadership and has gone far beyond what other states have done to improve coal mine safety. She noted that during the Fletcher administration, Kentucky has increased the number of coalmine safety inspectors from 47 to the current 65. The state has also increased the number of inspections by 100 percent. In 2004 and 2005, there were five coal mine fatalities. These were the lowest number of fatalities recorded in Kentucky's coal mines. Nonethless, five coal miner fatalities is five too many. She said that with the cooperative effort of the state, federal government, coal miners, operators, and unions, the number of fatalities can be reduced to zero.
Secretary Wilcher said as she travelled around to the coal mines, she learned from both coal miners and coal operators that substance abuse was a major concern. Consequently, a task force was announced in December of 2004. The task force, along with Commissioner Bush, met for almost a year to determine the extent of the substance abuse problem and what could be done about it. The work of the task force and its recommendations formed the core of HB 572 that was enacted in 2006.
Responding to Governor Fletcher's continuing question of what more can be done to improve coal mine safety, Secretary Wilcher said her cabinet began a comprehensive review of mine safety statutes and regulations before the Sago and Darby mine disasters. Based on that review, the cabinet began working with several legislators to develop Senate Bill 200, which was passed during the 2006 General Assembly. Senate Bill 200 is the most comprehensive mine safety legislation that any state has passed and is very similar to the bill passed by Congress that President Bush was signing today.
In a continuing effort to do more to improve mine safety and after having four fatalities in a fourteen month period involving roof falls during the process of retreat mining, an independent study on retreat mining was conducted. Commissioner Bush and her staff are reviewing the recommendations and beginning implementation of some of those recommendations in an effort to improve safety in this process which is used in a major portion of coal production activities in Kentucky.
Secretary Wilcher said the bipartisan effort involved in the passage of House Bill 572 and Senate Bill 200 was something all Kentuckians should be proud of because this legislation made Kentucky the first state to require drug testing of coal miners and the safety legislation was more comprehensive than any other state's legislation on this issue. She said the substance abuse bill, House Bill 572, includes mandatory drug screening prior to certification, incentives for employers to perform random screening, and employee assistance programs. The legislation also authorizes post accident drug screening.
Secretary Wilcher noted that SB 200 also requires additional self-contained self-rescue devices (SCSRs). Commissioner Bush explained how those devices work, noted that each one weighs about seven pounds, and that lack of knowledge about what to expect when one is activated might be problematic for a coal miner. She said the self rescuer when activated creates a chemical reaction. The unit becomes very warm and can burn the throat of the user. She noted that a coal miner who doesn't know what to expect when the unit is activated could think that the unit was not working properly. Because of this, the cabinet is considering whether a simulator would be appropriate to ensure that coal miners are trained properly on how to use the self rescuers.
Senator Jones commented that self rescuers are great but stated that they don't always work as he demonstrated on the Senate floor during the 2006 General Assembly. He commented further that news reports indicated that the self-rescuers of the miners killed in the Darby mine did not work. He questioned Secretary Wilcher on the status of the cabinet's review and study of the feasibility of requiring the use of rescue chambers, which has been authorized by the federal mine safety agency (MSHA) for many years. He noted that rescue chambers provide a safe place for miners if they were trapped inside a mine and the escape way was blocked.
Secretary Wilcher assured Senator Jones that the cabinet and administration are not just sitting around on the issue and that a task force is looking into the issue of rescue chambers and attempting to gather the best research and information possible on the feasibility of their use..
Senator Jones asked for the status of the investigation regarding the Harlan County mine tragedy. Secretary Wilcher replied that investigation is ongoing and that the administration used its subpoena power to expedite the questioning of witnesses which will make the investigation move more quickly. She said the state is partnering with federal MSHA on the investigation. She also said that it should not be assumed that the Darby miners died because there was no breathable air supply or from inoperable self rescuers.
Commissioner Bush showed the committee the map of the Darby mine. Co-Chair Gray asked how big the mine is and whether coal miners are required to have the self rescuers with them at all times. Commissioner Bush replied that the mine is approximately 1000 acres, and that after July 12, the law will require a miner to have the rescue device within 25 feet of where the miner is working.
Co-Chair Gray then noted that there were some individuals in Western Kentucky who are in the business of constructing rescue chambers. He questioned the panel if any other states are using them in the coalmines. Commissioner Bush said no other coal states require the use of rescue chambers, but that West Virginia has just completed a study on the use of rescue chambers and wireless communication technology. She said the cabinet has just recently received the study and it is being distributed to the Mine Equipment Review Panel whose charge is to review this type of technology. The panel will begin its work in mid-July.
Senator Rhoads stated that there is a need to improve the communication technology within the coalmines. Secretary Wilcher responded that Senate Bill 200 will require two way communication for every miner in the coalmine.
Senator Rhoads then noted his concern for the pay of mine analysts and inspectors. Secretary Wilcher commented that the starting salary for a Kentucky mine inspector is too low, but that the constraints of the merit system prevent increasing this starting salary at this time. By way of illustration, Commissioner Bush stated that the starting pay for a Kentucky mine inspector is a little over $33,000. With the training, experience and certification required under Kentucky law, a person could start with MSHA at $42,000 which increases to $52,000 after one year, and to $62,000 two years after that. Commissioner Bush said Senate Bill 200 requires three additional inspections annually and that there is a need for ten additional inspectors, but it is difficult finding people to work for the salary offered.
Representative Nelson stated that the Darby mine is in his district, and mine safety is of great concern to him. He asked what miners used before the current rescue devices became available, whether there is a device that would be less heavy, and is it possible to store oxygen supplies in the mine? Commissioner Bush replied that the current rescue devices used are state of the art and storing oxygen in the mine is dangerous as to its explosive nature. She also said that prior to the self rescuers currently required and utilized, there was no supply of breathable air, just carbon monoxide filters.
Secretary Wilcher summarized by informing the members about three additional requirements of Senate Bill 200. One is a toll free number system to report mine accidents. She said this is staffed 24 hours a day to ensure prompt reporting of and responding to mine accidents. There are whistleblower protections for those reporting unsafe or suspicious activity in a coal mine. Secretary Wilcher said that Senate Bill 200 will also authorize the agency to impose penalties for significant violations without the necessity of first going through the mine review commission. She also said Kentucky is now the only state that has mine rescue teams that are staffed by state agency employees. This will allow the state agency to respond to a mine accident by being on the scene of an accident in a very short period of time.
Co-Chair Gray thanked the Secretary and the Commissioner and requested that LRC staff be notified of upcoming meetings of the panel studying the issue of rescue chambers and other mine safety technology.
At this time, Co-Chair Gray gave a brief history of the Kentucky Labor Management Conference and expressed his displeasure that a decision was made to move the conference this year from Kentucky Dam Village to Northern Kentucky.
Secretary Wilcher stated that in current years the conference has become more of a social event rather than one that considers substantive labor-management issues.Co-Chair Gray commented that a social environment is often more conducive in bringing labor and management together to work out issues than a more structured formal setting. He stressed that there is no need to mess with a successful conference and noted that the change in the venue and date on such short notice will cause problems for many planning to attend.
Secretary Wilcher responded that lately the attendance at the conference has been declining and again stressed the need for “substantive” issues to be addressed. Co-Chair Gray encouraged the Secretary to strongly consider moving the conference back to Kentucky Dam Village.
Representative Hoffman stated he agreed with Co-Chair Gray and hopes the Labor Management Board of Directors reconsider the change in venue. He noted this was a very successful event and Western Kentucky needs the economic boost it receives from the conference.
Senator Harper-Angel expressed her disagreement with the proposed change in the location of the conference and asked if a motion from the committee would be appropriate to request the board of directors of the conference to reconsider its previous decision and to leave the conference in Western Kentucky. Senator Harper- Angel made the motion which was approved by voice vote. Senator Westwood voted against the motion and said that despite the comments made earlier, Northern Kentucky would have been a good location for the conference.
The final item on the agenda was an issue relating to firefighters and overtime pay. Co-chair Kerr said the firefighter overtime issue has been the subject of several lawsuits since about 2000. She said the issue surfaced again recently in Paducah when firefighters were informed they would not receive an annual pay increase because the firefighters had filed a lawsuit over overtime pay. Co-chair Kerr said there are similar lawsuits in northern and eastern Kentucky, and that the major lawsuit filed in Louisville a few years ago is still in the courts. Because this overtime issue is potentially very costly to the cities, Co-chair Kerr said it was appropriate to have an update on this issue on the agenda and to have a representative from the Department of Labor provide an update and overview of this issue. She introduced the speakers on this issue: Jim Zimmerman, Les Renkey, and Marjorie Arnold from the Department of Labor; Bert May and Joe O'Nan from the Kentucky League of Cities; Michael "Howdy" Kurtsinger from the Kentucky Fire Commission; and Bruce Roberts, President of the Kentucky Professional Firefighters Association.
Mr. Zimmerman said the overtime controversy involving firefighters arose over the issue of how to calculate overtime on the state salary or incentive pay supplement that is provided to cities and local governments to assist in paying for scheduled work time for firefighters. He said the General Assembly in 1980 created the Firefighter Foundation Program Fund which provided a pay incentive to firefighters who met certain education and training requirements. The amount of the incentive pay supplement has increased to a current level of $3100. He said firefighters typically have a workweek that includes 24 hours on and 48 hours off which is not the standard 40 hour workweek for most employees. Payments are considered part of wages. Mr. Zimmerman said the state law does not provide an exception to the forty hour rule for firefighters. He said there is no specific direction as to how to calculate overtime when the state incentive pay is a factor. He said the General Assembly might have to legislatively provide more direction on how the state incentive is to be paid for the purpose of calculating overtime pay. He said in 1984 the Labor Department issued guidelines for calculating overtime on the basis of the incentive pay. In 2000, Louisville firefighters filed a complaint alleging that they had not been paid the correct amount of overtime. He referred to a handout that contained examples of different computation methods. The final order issued by the Labor Cabinet in the Louisville firefighters case, ruled that the state incentive pay was paid for scheduled work hours but was to be paid for all hours worked over forty. On appeal, a Jefferson Circuit Court ruled in favor of the firefighters. The case is currently on appeal to the Court of Appeals. He said the Labor Department is currently awaiting a decision from the courts, but that legislative action might be required to ultimately determine how the state incentive supplement is to be paid.
Mr. Kurtsinger said he represented the Fire Commission which administers the incentive pay program. He said it is similar to an incentive pay for police officers. He said cities pass through the incentive payments from the Fire Commission to the qualified firefighters. To qualify for the incentive pay, a firefighter must have one hundred hours f additional training annually, and if one firefighter doesn't meet this requirement, no firefighters in that department receive the incentive pay.
Representative Yonts asked if this overtime issue only affect cities that have paid fire departments. Mr.Kurtsinger said about 30 to 35 cities have paid professional fire departments and this issue only affects those cities. It does not affect volunteer fire departments.
Bruce Roberts, representing the firefighters, said this issue only affects those cities that have not been correctly calculating the overtime pay due to firefighters, some of whom are making minimum wage. He said some cities have in the past miscalculated overtime pay and not paid firefighters what they deserve. He said the incentive pay should be included in the base salary. He said the firefighters are asking to courts to rule one way or the other.
In response to a question from Representative Yonts about the number of firefighters who make minimum wage, Mr. Roberts said he knows of firefighters who start out at $17,000 without an increase for several years. Firefighters working under a contract might be paid $25,000 to $30,000.
Regarding the recent situation in Paducah, Mr. Roberts said there has been a bad relationship between the firefighters and the Paducah City Council for years. Negotiations on a contract have been unsuccessful. During this time, firefighters learned that they might not be receiving the correct amount of overtime pay and filed a lawsuit. As a result, the firefighters in Paducah have been told they would not receive a pay increase that other employees will receive.
Bert May, representing KLC, said he also had with him Joe O'Nan who worked twenty-seven years with the Labor Department and is now with the KLC. Mr. May began by saying that the firefighters do a great job and cities would like to pay them more, but at the current time, this is not a possibility because of limited revenue sources. He said legislators will hear more about limited resources of cities when the Local Government Taxation Task Force issues its final report. The last meeting of this task force will be held on June 27.
Mr. May said on unscheduled overtime for firefighters, the city has to pay overtime on the incentive pay, and the issue gets difficult when trying to calculate overtime based on a work year based on 2,912 hours which is a unique situation because a typical workweek includes 24 hours on and 48 hours off. Mr. May said he thought the problem in some of the cities is that they have been calculating overtime based on what they were told years ago was the correct method. This is what they are doing and now they are being told that they are not doing it correctly. As a result, Mr. May said Paducah is facing a potential $6 million liability on something the city thought it was doing correctly. He said this is a problem that can be very widespread among Kentucky's cities and is something the KLC is very concerned about.
Representative Miller commented that firefighters save a lot of lives and do much more than fight fires. He said these employees are very important and should definitely get paid more than $17,000 a year. He said additional revenue sources should be found to pay employees like the firefighters what they deserve to be paid.
Co-Chair Gray asked when the court's decision on the Jefferson County firefighter case was expected? Mr. Renkey responded that a decision was not expected for at least six months.
Mr. Zimmerman, in a final statement, said the firefighter overtime issue was not going to go away and he and the Labor Department would be available to assist the committee if legislative action becomes necessary.
Co-Chair Gray recognized Rep. Yonts to discuss a letter he sent to the co-chairs and distributed to the members relating to coal mine safety. Representative Yonts said that even though the administration, General Assembly and Congress are addressing many coal mine safety issues, other mine safety issues like those dealing with mine seals might not be addressed in legislation that has recently been enacted. He said his letter to the co-chairs requests that the Interim Joint Committee on Labor and Industry seek authorization to conduct four hearings on coalmine safety. He suggested that the hearings be held in Pikeville, Benham, Harlan and Madisonville. He said the hearings, like those held several years ago on black lung, would provide an opportunity for the committee to obtain valuable information on what additional legislative action is necessary to correct the problems. Co-Chair Gray responded that with the loss of a quorum, no action by the committee could be taken today on his request, but that the request would be acted on at the next meeting. Representative Yonts said he had no objection if the co-chairs sought approval on their own before the next meeting.
Co-Chair Gray informed the members that a date has not been set for the next meeting. Regarding issues that will probably be discussed in upcoming meetings, he said the committee will probably need to look at the ongoing financial problems with the unemployment insurance trust fund. Representative Yonts questioned if the matter was so pertinent that it needed immediate action, questioning the possibility of addressing the issue during the special session. Co-Chair Gray said that had not been mentioned as a possibility.
There being no further business, the meeting was adjourned.