SmartTranscript of House General - 2025-04-09 - 10:05AM

[Chair Marc Mihaly]: Thank you. Welcome, everybody. Welcome back to the House Committee on General and Housing. Today is still April ninth twenty twenty five, and we are having an introduction and walk through and a little committee discussion, but not yet testimony about proposition three, declaration of rights, and collectively bargain. I guess is Senator Hashim is not here. So we're gonna proceed directly. Sophie. [Sophie Zdatny]: Good morning. Sophie Sedatny for the office of legislative council. As we noted before, there isn't really a good clean copy of the proposed amendment available, so I put together the PowerPoint. It simply as the constitutional amendment on it, but just to make it a little easier for folks. I know that you recently had, the club at the house in to talk about the procedure for a constitutional amendment. So just as a very, very quick recap, we're in the second biennium. It's passed through the Senate. It's with the House. As the Committee of Jurisdiction, you now have the constitutional amendment in front of you. You can't change the language to it. Language is set. The I believe the committee is looking to schedule a public hearing on the proposed amendment. Once it is voted, assuming it passes and it's voted out of the house, the next step is that it goes to the voters of the state in the general election in November of, twenty six. So just as a quick recap on where we are. [Vice Chair Ashley Bartley]: Yes. And this year, last year, we or last biennium, we had to have a a bigger number of votes in favor of it than we did this year. [Sophie Zdatny]: Yes. But [Chair Marc Mihaly]: Was it two thirds last year? No. Was it two thirds in the senate last year? [Sophie Zdatny]: It was it was it had to be a quorum. It had to have a majority of the members of the house. And this time, it's a as long as you have a quorum on the house floor, it's a majority of the quorum. So it is a lower threshold than it was last year. Just pointing that out. [Speaker 3 ]: Just for the committee to pencil in, we Magali has scheduled our hearing for the twenty second of April. [Chair Marc Mihaly]: Okay. One o'clock? One o'clock. At one o'clock in room ten. [Vice Chair Ashley Bartley]: Oh, that's nice during the day. [Speaker 4 ]: And then there's no written comments option. [Chair Marc Mihaly]: And written custom. So for those who are here or listening, there is a deadline in the notice for what's the date for deadline of submission of [Speaker 4 ]: Sunday, the seating of Tuesday of the hearing at five PM. [Chair Marc Mihaly]: So did you hear that Sunday, seating hearing at five PM? People who want to testify at the hearing. We will take testimony, but separately, but if you want to testify at the hearing and if you're listening online, that's the you should contact our committee assistant and let her know that you want to testify. We'll set time limits in the hearing if appropriate, depending on the number of people. They are. Three minutes. Three minutes? Mhmm. Okay. Please proceed, Sophie. Alright. Wait. No. It's a lot of [Sophie Zdatny]: told that I was so excited to have it up and everything. [Vice Chair Ashley Bartley]: I'll fill some space. [Sophie Zdatny]: There we go. Okay. I just had one little thing I needed to clear out the way. Okay. So section one of the amendment states that the proposal would amend the constitution to provide that the citizens of the state have a right to collectively bargain. By past practice, just to be clear, this language would not appear on the ballot. So this is in the proposed amendment, but this is not language that appears on the ballot. And I I stress that because there have been questions in the past around undocumented workers in the state and whether they would have the right to collectively bargain. And so this language about citizens is not something that would be on the ballot. So section so there's really two big sentences in this constitutional amendment. So they're together. I just separated them into two sentences on the slides. So the first one is that employees and, again, employees, it's general, it doesn't limit it to certain employees or whatever, it's just employees, have a right to organize or join a labor organization for the purpose of collectively bargaining with their employer through an exclusive representative of their choosing for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety in the workplace. Right. So we already know we've we've gone through before with the committee. We had a background on, the Labor Relations Act in the in the state. And we talked at that time about the National Labor Relations Act, which covers most, in private employers. And, this really is filling the so most people that work for private employer are going to be covered by the National Labor Relations Act unless they're explicitly excluded, which covers which the specific exclusion to domestic workers, agricultural workers, independent contractors, and then public sector employees. So essentially, this language is really who is going to be able to take advantage of this is really the folks that currently aren't covered by some other labour relations statute. So for primarily, this is really going to be, you know, public sector employees that are not covered or explicitly excluded right now from bargaining. Agricultural workers, for example. Domestic workers, Vermont changed their law last year. So under the State Labour Relations Act, domestic workers, if they work for an employer that's got five or more employees, are able to organize and collectively bargain onto the State Labour Relations Act. But so this is this is expansive. This is take going beyond, the folks that currently have the right to organize, whether under federal law or under state law. Working conditions. So right now, under Vermont and I'm primarily gonna talk about the State Employees' Labour Relations Act because that's kind of the big the big player for for public sector employees in the state. When it talks about for the purpose of negotiating wages, hours, and working conditions, and to protect their economic welfare and safety in the workplace. CELRA, the State Employee Labour Relations Act, has a very broad, list of things that are required the mandatory, subjects for bargaining. Again, we touched on this when we went through the overview of our labor relations acts before. So this doesn't I wouldn't say this really the the wages, hours, and working conditions historically has been construed very broadly in Vermont. So I don't know that this goes further than that. Economic welfare is language that was in the Illinois recent Illinois constitutional amendment. It's not defined. It's not a term that we've used in Vermont or the Vermont Labor Relations Act has used. So I'm not entirely sure if you ask me what economic welfare means. I don't know beyond the wages, hours, and working conditions what that would be. Safety is something that traditionally is usually part of, you know, contracts. You you know, when you're negotiating a contract, typically safety is part of that. So I just mentioned that there are several states that have constitutional provisions, around the right to organize and to collectively bargain. The most pertinent one for purposes of Vermont's proposed amendment is in Illinois. Illinois went through their constitutional amendment process, went to the voters in November of 'twenty two. And their constitutional amendment is very similar, not identical, but very similar, particularly in the breadth of the amendment. Their amendment is very similar to what's being proposed here. There were similarly, there have been efforts in California and Pennsylvania to to propose something similar to what we we've got as a constitutional amendment here, and those have not progressed. They've kind of stalled as far as I'm aware right now. But Illinois is the one that's most similar to this, but it only passed with the voters in all of November of twenty two. So it's not as if there's a, you know, there's a lot of things that Vermont can look at to say, well, how is this going to play out? We, essentially, we really don't know at this point. [Chair Marc Mihaly]: So [Sophie Zdatny]: and then the second second sentence of the proposed amendment, Therefore, no law shall be adopted that interferes with, negates, or diminishes the right of employees to collectively bargain with respect to wages, hours, and other terms and conditions of employment and workplace safety, or that prohibits the application or execution of an agreement between an employer and a labor organization representing the employer's employees that requires membership in the labor organization as a condition of employment. There's a lot of stuff in that. So the no law shall be adopted that interferes with the gates or the militias. Again, I was not here when this was initially being proposed, but I would anticipate one of the driving motivations was to make sure that Vermont does not adopt a right to work law. So there are a number of probably over half of states, I think it's around twenty seven, twenty eight states in the country, have work to work laws. Those are laws that, mean that, you cannot be required to join the union. And so this is essentially saying that no law would be adopted that would interfere with the the rights that employees currently have under Vermont law. So just something to be aware of, on that. I think there's one other thing. I I I believe that was the intent here. But something against legislators, I think, to be aware of is that no law shall be adopted with that interferes with negates or diminishes. That means that moving forward, the legislature also can't adopt other laws that would limit bargaining rights. So for example, a couple of years ago, the legislature passed a law to say that moving forward, that under the Labour Relations for Teachers and Administrators Act, that there would no longer be negotiations at the local level over health care. That's now negotiated on a statewide level. So arguably, you know, this this may tie the hands of future legislatures in terms of saying, you know, you can't bargain over this in the future, or you can't do that. So just something to be aware of. You know, this is very broad. It's not limited to not adopting a right to work law. [Chair Marc Mihaly]: So But it's prospective. [Sophie Zdatny]: This is prospective, so no no law shall be adopted. So any existing law, you know, is is the law right now. But, yeah, this would say that you can't adopt something in the future that would change. But what do we [Chair Marc Mihaly]: just a question about that. You go back I mean, when the first pair well, let's take it for example. We've seen one of the bills before us is a bill that would allow someone who I can't remember. I think it's either assistant attorneys general or it's the one that involves, I can't remember. Some other employee group. I should remember. Judiciary supervisors? Yeah. Perhaps. Yeah. So there's a section in the law right now, which I guess would be in Celro. That says it's up to the board. The board makes the decision on whether to certify a group to to to be able to organize. [Sophie Zdatny]: Yeah. I mean, on to so that was [Chair Marc Mihaly]: And then this was those were written as provided however, and then they said that the group that's the target of the legislation can. In other words, they took away from the board these proposed bills take away from the board their ability to decide. But as I understand it right now, the board makes the decision. Right? [Sophie Zdatny]: Well, it's an in statute. So the judiciary supervisors would be under the Judicial Employee Labor Relations Act. So right now, judiciary supervisors and of of one of the groups that can't, collectively can't organize and collectively bargain. So that provision would would would remove that exclusion. And then similarly, under the State Employee Labor Relations Act, there's a long list of of folks that are not considered employees for purposes of the State Employees Labor Relations Act. Right. [Chair Marc Mihaly]: Well, I guess my question is, although there's laws that existed, would wouldn't they be invalid under section one? [Sophie Zdatny]: Yeah. Arguably, yes. I mean, this would certainly mean that it says employees have a right. It doesn't limit it to only employees that are currently allowed to bargain. So I think it's it says employees. And once this is in the constitution, then you have a constitutional right to organize. That's gonna trump a statutory prohibition on organizing. [Chair Marc Mihaly]: So it's self ex article section one in your is self execute? [Sophie Zdatny]: It's gonna depend on what a court decides. So there have been different decisions on that. So in New Jersey has a has a constitutional right to organize. New Jersey didn't pass any specific labor relations laws relating to agricultural workers. And agricultural workers organized. And the argument was, well, you can't because there's no statutes of allowing you to do it. And the New Jersey Supreme Court held, well, it's a self perpetuating statute, so they have the right to organize. New York did the same thing with agricultural workers. What happened in New York was, I think it was a lower court, an appellate court, said that they had the right a constitutional right to organize. And then the, legislature immediately passed a a labor relations act that covers agricultural workers. [Chair Marc Mihaly]: Would we, for example but but am I right to assume that the constitutional the broad constitutional amendment in section one. Not section two. No. It's section two. Right. Yeah. Yeah. Section two. So wait. Let's go back. So what you're saying is section two is kind of freestanding, says you have this right. It's self executing. So if there was a state law of any sort that contradicted it, it could be invalid or one could go ahead and organize. Section three is prospective and says [Sophie Zdatny]: These are both sorry. It's confusing. But there are two sentences, so they're both in section two. Oh, okay. I just wanna be clear. Right? But you mean the second sentence the second part of section two? [Chair Marc Mihaly]: No. Wait a minute. The one that says employees may organize. Right. [Sophie Zdatny]: That's the first bit. Yep. Okay. Right. [Chair Marc Mihaly]: Yes. So you're saying that's sort of self executing in the sense that a law which interfered with somebody's right, current law, would be invalid. And the second sentence would make any prospective law particularly a right to work one. [Sophie Zdatny]: Right. That you can't adopt any laws in the future that are going to interfere with, negate, or diminish the right of employees to collectively bargain. [Chair Marc Mihaly]: So what about laws that are it's laws that propose to establish procedures to for the first sentence. In other words, because I I mean, I'm really pretty ignorant here. But as I understand it, typically, labor laws provide that if you wanna organize, a certain percentage of the workers have to agree to a union. Right. Well, that so if we there's nothing like that in the first sentence. So if we were to pass a law that says it takes thirty percent of the workers, would that do I violate that section? It can't be self executing, can it, if there's no critique? [Sophie Zdatny]: So I think the what would happen is the so the existing statutes that we have, for example, around, you know, thirty percent interest in order to hold another action or fifty percent plus one for for card check, Ultimately, that would come down to you know, again, someone would have to make an argument that those that those statutes are interfering with someone's constitutional rights under under what's being proposed here. And then a court would need to look at that and decide whether or not, you know, that's a, you know, violation of the constitutional right. And then, typically, courts that have been looking at the right to organize and collectively bargain have been applying a strict scrutiny test on the right to organize and collectively bargain. I don't know for a procedural thing. That may not be may you know, may not be a fundamental right to a thirty percent showing of interest or something. Right? That might be a different standard. But generally speaking, if you have the constitutional right to organize and collectively bargain, and there are limits on that, then the court's going to look to see whether or not, you know, under the strict scrutiny standard, whether or not that's an appropriate restriction on that constitutional right. So it's not that you couldn't have restrictions on it. It's just they're gonna have to meet that much higher threshold. [Chair Marc Mihaly]: Are there definitions under state law for what an employee is? [Sophie Zdatny]: Yeah. And under each of well, under the current statutes Under the current And then employees define somewhat I mean, there are all these different employment laws. Right? So, you know, we we looked at the parental and family leave act. There's a definition of what an employee is under that. But certainly under the Labor Relations Acts, there are definitions of, you know, who's an employee for purposes of collective bargaining and then who isn't. That's where the the exclusions come from. [Chair Marc Mihaly]: Will those laws survive? Is that the first sentence of this? [Sophie Zdatny]: The first sentence? Yeah. I mean, this is really I think it's it's expanding the right to organize or join a labor organization to folks that are not currently eligible to organize or join a labor organization. So this is just expanding who's who can seek to organize. [Chair Marc Mihaly]: Go ahead. [Speaker 3 ]: I'm at this point a little confused. Yeah. Can I just say something out loud and you just tell me if I'm off base? This so we have the fifty percent plus what for Large check. Charge check. That's still fine. All this is doing is saying we are not putting any restrictions on who can unionize. There are still thresholds that a union would have to meet in order to unionize. Correct? [Sophie Zdatny]: Yeah. I don't to be honest, I don't know exactly how if I mean, so right now that we have seven labor relations statutes, I would imagine courts would look to those. I mean, and a lot of them there are the quirky differences between them, but they're they sort of like, majority sign up. Right? That's fifty percent plus one. You know, it applies sort of across the board. So I think those would would still apply. But if you had a brand new group that there isn't that doesn't fall into one of the existing labor relations acts, I'm not entirely sure how that plays out. And, again, I don't know if this was all discussed when this amendment came up last year, and maybe this was all fleshed out last year. No. [Speaker 3 ]: It was not. It's not a while ago. Not in this committee. Can I ask another question? Once again, just trying to, like, wrap my head around it. So right now, ag laborers do not have the right to unionize. Right? This would give that to them, and they do not as of right now, they wouldn't fall into [Sophie Zdatny]: They don't fall into any of the existing buckets that So [Speaker 3 ]: you're saying that they wouldn't have to meet that threshold? [Sophie Zdatny]: I don't know. I don't know how that would play out. I mean, I would assume that again, I think if you've got procedural rules, those can be viewed and, you know, is on a more rational basis. I mean, there has to be some sort of organization and rules around how you do things. [Chair Marc Mihaly]: I [Sophie Zdatny]: think the this first sentence is, as I understand it, is intentionally expanding to say that every basically, everybody has the right Yes. To organize or join a lead. It's not saying how you do it, what the requirements are, you know, what the showing is. I mean, you'd still have to have some mechanism whereby you establish that, you know, a majority of people want to have a union or whatever. I mean, I would imagine you would go back to the sort of labor law principles Mhmm. On how you look at that. [Speaker 5 ]: Yes. Yeah. So I I think I recall dialogue about this. And if [Chair Marc Mihaly]: I recall [Speaker 5 ]: correctly, agriculture workers are not considered employees, and we had I I if I recall correctly, we've had conversations in that regard. [Speaker 3 ]: Ag labors were just an example because I knew, like, [Chair Marc Mihaly]: they were one Yeah. That's what I know. [Speaker 3 ]: I was like, wait a minute. I'm like, I think we have, like, a whole I know. Definition of employees and what that would cover. Yeah. [Speaker 5 ]: And so I think based off of our definition of employee, I think that is what would which categorize, because we have a specific definition of employees and what that means for certain businesses and the different categories. And so I don't think it's I don't think it's as general as we are perceiving it to be [Sophie Zdatny]: in this context, I think, if I'm not mistaken. Well, agricultural workers are are employees. They're just explicitly excluded from coverage under the National Labor Relations Act. And then in Vermont, they're excluded under the State Labor Relations Act. [Chair Marc Mihaly]: Not excluded as employees, but excluded as well. [Sophie Zdatny]: They're just exclude as a category of of employees, they're excluded. It's not that they're not employees. It's just that if you're employed in agriculture, you're excluded from being able to organize and collectively bargain under federal You're [Chair Marc Mihaly]: not excluded from the definition of the employee. Right. [Speaker 3 ]: Sorry. That was my [Sophie Zdatny]: employee. Right. For example. [Speaker 3 ]: Could you give us a recommendation of who might be able to answer that question? Like, would maybe we bring somebody in from I [Vice Chair Ashley Bartley]: I think we have a lot of experts in the room that hopefully we'll hear from because I'm just feel like there's this is going a little bit I don't know. I think we need to have some others people come in to talk about this. [Chair Marc Mihaly]: Well, we know. [Speaker 3 ]: What I just asked. [Chair Marc Mihaly]: We will. It was the same concerns. [Member Emilie Krasnow]: Oh, sorry. Go for it. No. It's fine. Yeah. Whether or not we have access to the testimony documents that were given to the senate last year. [Chair Marc Mihaly]: We do. Yep. Okay. [Member Emilie Krasnow]: And this Can we find those online? [Chair Marc Mihaly]: We have we have all those discussions. I like this. Exactly. I have to say, I mean, I think constitutional amendments are pretty powerful. And if there was a group of employees who wanted to organize and they were not permitted under state law to organize, I think they'd have a very strong case regardless of what state law said. Whether they were excluded as employees, The question would be, does the word employees in the constitution, was it meant to be limited by all the existing statutes? And I don't know the answer to that. [Member Emilie Krasnow]: There's section one. If if it's [Sophie Zdatny]: You mean section one on purpose or just the first sentence? [Chair Marc Mihaly]: One. No. [Member Emilie Krasnow]: Okay. It's actually true. It's one of the other. No. Maybe it's the next one. No law should be adapted. The language would be the nature diminishes, So it does not change existing laws. No. And if existing laws specifically exclude or do not include, what is the change for them? Does it change? [Sophie Zdatny]: Oh, let you need to have a constitutional right, and your constitutional right's gonna trump the statute. [Member Emilie Krasnow]: Okay. So what is the point of the sentence then? [Sophie Zdatny]: The this one, I I believe the intent was to make sure that Vermont did not pass a law that would make the state what's called a right to work state. Or or, I mean, again, it could be a lot older than that or or any other law that [Member Emilie Krasnow]: half of this doing that. I'm just not sure how the [Chair Marc Mihaly]: We'll talk. [Member Emilie Krasnow]: The first thing. It's all one sentence, isn't it? [Sophie Zdatny]: So the second I mean, we haven't really talked about the second part of this sentence. So the order prohibits the application or execution of an agreement between an employer and a labor organization representing the employees. Yep. So that's what that's saying is you can't pass a law that would prohibit those agreements. So those are kind of union shop agreements. Like, if you're an employee here Yep. You know, it's a union shop. Like, you need to be a member of the the union. [Chair Marc Mihaly]: It's for the or. [Sophie Zdatny]: Okay. [Member Emilie Krasnow]: And it's really just that first line. No one no locks will be adopted that interferes with negates or diminishes the right employees, but we've already that's going forward. [Speaker 5 ]: Right. [Member Emilie Krasnow]: So I'm I'm just I'm not do we have an can we get an opinion from superior court? [Chair Marc Mihaly]: How does this even work? I don't think I don't think it could Good. Have we could always someone could always ask a court, but I don't think a court would rule on a law that doesn't exist yet. I mean, a constitution. Okay. But it just seems to, [Member Emilie Krasnow]: you know, to put it into law and see what they do with it. [Sophie Zdatny]: There was testimony last year, last session from, professor Teachout from the Vermont Law School. There may have been others, but I know he submitted written testimony Okay. About We have a about the the proposed amendment. His his testimony in [Vice Chair Ashley Bartley]: the senate was different from his testimony in the house. Right? In the house, it was in judiciary. And it was in senate judiciary as well, but they were not he didn't testify the same in both [Sophie Zdatny]: things. I've just seen one set of testimony, and I don't recall which one. I'm gonna have it somewhere I can look and see. But [Chair Marc Mihaly]: I have this testimony, but I can't tell. It just doesn't say whether it was the It was from Senate Economic. Was that from Senate? Okay. Oh, we're right. For Senate Economic. Yeah. [Sophie Zdatny]: Yeah. So I guess just to finish up the the second part of this sentence, that wouldn't apply to public sector employees because there's been US Supreme Court decision in twenty eighteen called the Janus decision, which means that you can't require public sector employees to, belong to the union or to pay union dues or an agency fee. So that language would apply to private employ you know, employees or private employers, but it wouldn't apply to public sector employees. And, again, because that's a Supreme Court decision, that would trump the constitution of the Vermont constitutional provision. [Chair Marc Mihaly]: So the right to work the right to work [Member Emilie Krasnow]: Yes. For public [Sophie Zdatny]: For public sector employees, the Janus decision. So [Chair Marc Mihaly]: So the right to works, it it can't employ apply to public sector employees. Right. Right. Effectively. Yeah. [Member Emilie Krasnow]: So this would but the way we have it ported, it does. [Sophie Zdatny]: This is yeah. This would suggest that that that it would you you would be required to pay either your union dues or pay an agency fee, but that wouldn't work in in practice because there's a US Supreme Court. And then until they reverse that or change their minds, which doesn't seem like the immediate feature, that right now, you public sector employees cannot be required to either belong to the union or to pay what's called an agency fee. You can you can you can be covered by a union contract and choose not to be a union member, but then typically you you pay an agency fee to cover the cost of the collective bargaining agreement process and and all that stuff. [Member Emilie Krasnow]: Does this have any bearing on right to strike? [Sophie Zdatny]: It does not mention right to strike. So it does not Okay. [Member Emilie Krasnow]: But it does so it doesn't mention it or imply it. It's, like, collectively bargain with respect to wages is not [Sophie Zdatny]: Could someone make an argument at some point that that the right to, you know That means collective argument. Yeah. I mean, some I mean, that's a potential argument that could be made, but it this doesn't specifically give somebody the strike the right to strike. Someone I mean, again, I assume, you know, there are [Speaker 5 ]: two of the lawyers. [Sophie Zdatny]: I'm sure someone could argue that there's a constitutional right. I mean, again, under federal labor law, the right to strike is considered a fundamental right. So whether or not that would then someone could make an argument that you know, although it does not explicit here that that should encompass it, I mean, that is a possibility. [Chair Marc Mihaly]: Yes. Go ahead. [Speaker 3 ]: I should know this. What happens if our this constitutional amendment disagrees with the Supreme Court? Is, like, is there any issues with that, or is it just like, oh, yeah. It's in our constitution, but Supreme Court so It's [Sophie Zdatny]: the US Supreme Court? Yeah. Yeah. The US Supreme Court's decision in Janus would trump the language then. So it [Speaker 3 ]: would just be a matter of it will just trump it, and it is what it is. Okay? [Chair Marc Mihaly]: Just to clarify something you said earlier. The federal law addresses private employ private sector employees. Does that mean we can't adopt provisions that affect private employees but are more protected? [Sophie Zdatny]: It would be preempted. There would be arguments for the protection. [Chair Marc Mihaly]: Right. It's preempted. You're spied. [Sophie Zdatny]: I think the National Labor Relations Act. The NLRB. And it's the NLRA is different to, like, the FLSA, the Federal Labor Standards Act. The NLRA is not does not establish a flaw. It occupies the field. So if something were to conflict with the National Labor Relations Act, then the National Labor Relation Act would would preempt the state law. [Chair Marc Mihaly]: But there's nothing in this amendment rights that would prohibit establishing wages, hours, and other terms in a normal contract negotiation. Right? And in other words, it doesn't guarantee anything other than the right to bargain. [Sophie Zdatny]: Right. I will say Vermont Vermont has typically the mandatory subjects for bargaining in Vermont has always been very broad compared to other states. Right. So the breadth of that language, I think, is probably consistent with the way Vermont traditionally has viewed mandatory subjects for bargaining. There are explicit products, like, again, for teachers discussing health care [Chair Marc Mihaly]: and others. But But for let let me give an example. Somebody says, oh, what's wrong with this constitutional amendment is certain jobs require long hours. The answer to that is that's the subject of contract Right. Regulation. That's not prohibited in or in any way effective by this. Right? [Sophie Zdatny]: Right. You you discuss those things at the bargaining table. This just gets people to the bargaining table to then talk about those things. I [Chair Marc Mihaly]: I do wonder, just as a comment, I do wonder about this sentence that's behind you. If you say, number one, it can't afford it can't apply to private employees because that's preempted by the NLR. And it can't apply with respect to the second part of the sentence with respect to public employees because that's [Speaker 4 ]: That that's [Sophie Zdatny]: true. That's only one piece, though. That's just so this has got two parts. I mean, again, it's a long sentence. No. I thought that part [Chair Marc Mihaly]: of the sentence came wrong. Okay. So yeah. [Sophie Zdatny]: Yes. I just did a a CLE yesterday about, you know, clear writing. No short clear sentences. One idea per sentence, and I would say this is yeah. This has got a lot of stuff in it. A lot going on. But, again, you can't you know, the language is now set, so it can't be changed Right. I know. As of [Chair Marc Mihaly]: I have more question trying to understand it. Yeah. Okay. Other go ahead. [Speaker 5 ]: And I just wanna clarify that this is the right to collectively bargain, which is separate from independent bargaining with individuals. So what this does is it allows employees the right to collectively bargain and unionize that they can together collectively advocate for fair wages, workplace safety, and working conditions. So that's the different differentiation is bringing folks to the table to be able to collectively bargain as opposed to an employee individually advocating and bargaining for their own independent. Yeah. [Sophie Zdatny]: But if you if if you are covered by a union agreement, if if the employer has a a bargaining agreement with a union in their workplace, you as an individual employee cannot do that. You can't it's called direct dealing. You can't have your own individual arrangement with the employer. You are covered by the union contract. Whether you're a member or not, you're covered by that contract. But if you're if you're working for an employer where there is no union, then, yes, you would yeah. That would [Vice Chair Ashley Bartley]: be it. Let's go. I just wanna say that I'm misremembering about or I misremembered about Peter Tichout's testimony. That was pretty good. I'd say the the other amendment, the which is the one that has to do with fourteenth amendment. Okay. [Chair Marc Mihaly]: Questions. More questions. I guess I have one more, but I'm gonna wait whether others. I wanna go back to work what we were talking about earlier. The question is who's an employee? And one of the things you said was the for example, you use agricultural workers. They're not exempted from being an employee. They're exempted from the right to bargain. Is that correct? Right. [Sophie Zdatny]: They're still employees. And even even under the National Labor Relations Act where they're not you know, they're explicitly excluded. I mean, again, this has come up a lot because of the the agricultural workers study committee where we were looking to be honest. So this is why agricultural workers are kind of top of mind. But there are there is, you know, federal case law up at the Supreme Court regarding, you know, undocumented employees working in agriculture under the National Labor Relations Act. And the the court, I mean, again, recognized their employees. But because they were undocumented, their their remedies were were limited under the National Labor Relations Act. So the fact that they, you know, they're not covered by the National Labor Relations Act doesn't take away the fact they're they're still recognized as employees. It's not that they're not employees. They are. [Chair Marc Mihaly]: Well, what so is this similarly the case with I'm just picking on the cases that I mean, the the the bills that are on our board. We have bills that say give the assistant attorney general Or no, it's it's not the AAG's right to organize. Would that be preempted by this or are they arguably non employees or are they clearly employees who just are excluded currently? [Sophie Zdatny]: So right now there are employees that are explicitly excluded. [Chair Marc Mihaly]: So those those kinds of bills may be trumped by this amendment. Right. Not that we wouldn't pass it anyway. It would stand, but it wouldn't you know? [Sophie Zdatny]: But because this would not again, this would not I mean, just to finish up, but, you know, if this passes through the house, then it goes to the voters. So it wouldn't this wouldn't become law until [Chair Marc Mihaly]: Yeah. Sure. Six. But, I mean, even if it wouldn't be harmless, but it wouldn't be and if this became law, it would trump. It would essentially say [Sophie Zdatny]: So if you didn't pass for assistant attorney generals, for example [Chair Marc Mihaly]: It would give it [Sophie Zdatny]: but then and then this was voted on and passed by the voters, then they would have the right. [Chair Marc Mihaly]: And they would have the right. Yeah. That's too much. Is there another group that is also excluded? There are a [Sophie Zdatny]: lot of groups in under the statute. Yeah. Under the different statutes, legislative staff are excluded. There's a lot a lot of groups that are excluded from being able to [Speaker 4 ]: work with. There are a [Speaker 3 ]: lot of side conversations, and I think we're all trying to listen. And I'd appreciate if [Chair Marc Mihaly]: we can just listen to [Speaker 3 ]: the testimony we're getting. Thank you. So [Chair Marc Mihaly]: thank you. Agreed. So there is any number of excluded groups, and what you're saying is they're not excluded from the definition of employees. They're excluded from the right to bargain. Right. [Sophie Zdatny]: Under the state law at the moment. [Chair Marc Mihaly]: So you think it's possible that those groups would have the right to bargain under this event? [Sophie Zdatny]: Yeah. I mean, it's again, there's no limiting language. It's employees have a right to organize or join a labor organization. And again, most people most employees are already covered whether they're unionized or not, but they're covered either by the Labor Relations Act or they're covered under one of the seven, Vermont Labor Relations Acts. There are specific folks that are not covered by those acts that are excluded. So presumably, this is giving them the the constitutional right to organize and join a labor organization. [Chair Marc Mihaly]: This is, I'm sure, a key factor which I think will probably hear testimony on. Yes. [Member Emilie Krasnow]: And I think this whole argument is basically gonna just boil it down to how the Supreme Court rule on that. Right? [Sophie Zdatny]: Well, for sure, there'll be litigation around the parameters of it. I mean, I will say that, you know, again, something very similar passed in Illinois, And I've not been able to I mean, the the court cases just take a really long time, particularly before decisions are published. I haven't been able to find any cases that have kind of gone the whole way through, you know, whether there are cases that are currently, you know, challenging how it's been interpreted or employees seeking to organize being denied the right and are claiming a constitutional right. The only one I'm aware of in Illinois, involving employees claiming to have a constitutional right to organize is actually legislative staff in Illinois. And that case was filed in, beginning of June of twenty twenty four, and it's still pending. So I don't know and it's a different they have a different structure than legislative staff do here. So, again, it may the outcome could be on procedural grounds there. You know, I'd it's it's hard to do the tea leaves on it. But so the bottom line is there isn't a lot of isn't any law out there really to go look at to say, well, how is this gonna be interpreted? And even if there is you know, again, you're looking at if you're looking at public sector state employees, there are so many different structures for that state by state that even when Illinois does rule on something, I don't know how persuasive it would be here unless it was more general principles. But, yeah, I mean, ultimately, it would be up to the courts to determine this constitutional right and to give it shape and, [Member Emilie Krasnow]: you know, when it applies, when it doesn't. And section one's our intent. Does our intent show any intent to allow us to carve people out that aren't allowed to? [Sophie Zdatny]: I mean, again, it's very broad. It provides the citizens of the state with the right to collectively bargain. It's not limited in any way. And I only flagged because we had the whole citizen issue came up as part of the agricultural worker study. But, again, this language wouldn't be on the the ballot, but that's Well, [Member Emilie Krasnow]: it's what those people would [Chair Marc Mihaly]: look at. [Sophie Zdatny]: Right. Right. That's [Member Emilie Krasnow]: principle. So intend to do, and then here's our purpose. Right. We clearly don't intend to [Sophie Zdatny]: To exclude anybody based on this. Right. [Chair Marc Mihaly]: Questions? Well, thank you very much. [Vice Chair Ashley Bartley]: Is senator Rasheem. Rasheem coming? [Chair Marc Mihaly]: Or [Speaker 4 ]: None of the three senators. Some of the clerks meet. Senator Ramos, they're always or available or indicate that they need to come. [Sophie Zdatny]: I see. [Chair Marc Mihaly]: So you've had the introduction. I think Nobody had a walk through. And a walk through. No. No. We don't have the introduction. Is did they say they just weren't interested in or they weren't available? [Speaker 4 ]: Senator Hashim said that he thought someone from the center economic development would be better suited because they had done the bulk of the testimony and also was unavailable. And both senator Clarkson and senator Ron Hinsdale said that senator Rashid should testify. It's the best [Chair Marc Mihaly]: Okay. So we'll see if we can clarify that. You did. An opportunity. Good. Great. You were. Right. Any other final questions of Sophie before we move on? Alright. Good job. Our next item is at eleven, and I do not see the author. It's just an introduction, and we're gonna have a series of introductions. I don't see the author yet. So

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