Vermont Legislature SmartTranscripts:

[Rep. Ashley Bartley (Vice Chair)]: February 29, and we have rep Dooper from Burlington to come do the introduction of page seven twenty six, which is an acronym to flexible working agreements arrangements. The floor is yours.

[Unknown Representative from Burlington (bill presenter for H.726)]: Page seven twenty six that provides guidance on people who come forward and ask for alternate working arrangements, and usually the first response from employers is like, my god, we can't do that. This bill sets out a framework by which people can and shouldn't. Quickly to go over the bill, it opens up a number of arrangement areas, hour, day, days per week, arrival, departure time, job sharing, which are possible areas for consideration. It also prescribes that there should be a meeting between the employer and employee, then they can cook a deal if they want to on what is permissible and what isn't in terms of the needs of the employee. There are a lot of reasons that employers may not want to do this and there are in the bill specific parameters, employee morale, consumer demand, inability to reorganize, recruiting staff, such things that would allow an employer to deny such thing. The positive side of it is that from flexible work arrangements or a benefit to rural communities because you get to stay rather than come someplace which is a major metropolitan area. The Monk Commission on Women says that eighty eight percent of women reporting these arrangements have led to a more equitable workplace, physically and emotionally disabled. Women of color, ninety seven percent say they live with support, flexible work arrangements for moderate disabilities, non chronic conditions have said so. Single parents, parents in general, parents taking care of their care, elderly parents find this to be a good thing to continue to take care of the parent without having third parties continue to do so, but still make them available at work. And quite frankly, state employment agencies are up 50%. This is not only directed towards state employment, but it makes a fiercely competitive labor market a little more open for future consideration of jobs. So if you can work from home, you might very well say, I'll take that job. So that's the quick synopsis.

[Rep. Ashley Bartley (Vice Chair)]: Great. Yes. I just have

[Rep. Leonora Dodge (Member)]: a quick question. Is there any kind of framing of how many requests you need to honor, or what happens if your request gets denied?

[Rep. Ashley Bartley (Vice Chair)]: Is it pretty open?

[Unknown Representative from Burlington (bill presenter for H.726)]: It's just pretty open. There is no there's a conversation in the bill about at least twice a year you should entertain requests from employees, but beyond that, there's no parameter for who or what.

[Rep. Ashley Bartley (Vice Chair)]: Good question from me. I just want to make sure I understand the foundation of the bill, is that an employer the mandate is for the employer to hear the request, not necessarily accept or approve the request, correct?

[Unknown Representative from Burlington (bill presenter for H.726)]: Well, there is a statement that you shall, there is a shall provision in the form.

[Rep. Ashley Bartley (Vice Chair)]: I would consider. The employer shall consider the employee's request for a flexible working arrangement and shall grant the request?

[Unknown Representative from Burlington (bill presenter for H.726)]: If it doesn't interfere with sections three, a, b, c, d, e, f, g. Okay. Pretty broad parameters for employers to say no, but, it at least puts a little bit of teeth in the argument. I think, you know, it would be remiss if we did not tie this to some degree to the issue of the governor may take all state employees to the office which has been disruptive to a lot of people the state of the house. The board is private, with caveat that they're going do with remote learning. But it's out into all employment. We have a lot of office space up in national life now because some of the people who work remotely happens all the way. It's been found to be an asset in terms of productivity, it seems like for some reason being close to your own refrigerator makes you work more than being in a workplace. And this

[Rep. Ashley Bartley (Vice Chair)]: isn't just for state employees, it's for all employers in the state? Correct. Regardless of size? Yes. And

[Unknown Representative from Burlington (bill presenter for H.726)]: the efficiency overflows to one of the

[Rep. Ashley Bartley (Vice Chair)]: pay factors for It's the what?

[Unknown Representative from Burlington (bill presenter for H.726)]: One of the reasons for denying. Right. So you still have to be able to do business, but can't just kind of a blanket policy that says no we're not doing this. Each person's situation has to be considered.

[Rep. Ashley Bartley (Vice Chair)]: Are there any questions?

[Rep. Leonora Dodge (Member)]: I guess just very quickly, like, the what is the oversight or penalty or who would it be, like a complaint would be lodged by an employee, if the employer had refused to do the meeting?

[Unknown Representative from Burlington (bill presenter for H.726)]: That is something that I know just wasn't in the bill either, and I would imagine that it would be a referral to the Department of Labor, but that's a little gray area for the committee to discuss.

[Rep. Ashley Bartley (Vice Chair)]: Thanks for visiting.

[Unknown Representative from Burlington (bill presenter for H.726)]: Thank you. Thank you, pretty.

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: Thank you. Next

[Rep. Ashley Bartley (Vice Chair)]: up, we are going to go over H five forty eight, which is an accolating to adding a meeting leader position to the office of the Vermont Labor Relations Board. We have Judith Dillon with the LRB, so, take it away, Judith.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: Hi. Thank you. I'm just testing out that

[Rep. Ashley Bartley (Vice Chair)]: you can hear

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: me okay.

[Rep. Ashley Bartley (Vice Chair)]: We can.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: Great. Thank you. Thank you very much. My name is Judith Dillon. I'm the executive director of the Vermont Labor Relations Board is grateful for any steps the legislature can take to fill the gaps left by the loss of the federal mediation and conciliation services, which is an a federal entity which for years provided the labor and management with free mediation services to help resolve impasses and negotiations and to resolve disputes and unfair labor practice and grievance matters. Early in the year through an executive order, a presidential executive order, most of the staff was fired. And in the upcoming budget, there is not sufficient funds to pay for or to revamp the organization to provide the mediation services that Vermonters have expected in the past. I'll provide you with a little background about the Vermont Labor Relations Board, if I may. It's a quasi judicial board that administers the seven Vermont labor management relations statutes. Decisions are made by the board, which consists of six lay members, two representing experience and background in management, two representing experience and background in labor, and two having a neutral background, meaning they weren't aligned or affiliated with either management or labor primarily. They're selected by an independent panel chaired by the or they're recommended by an independent panel chaired by the Commissioner of Labor and appointments are made by the governor. The board has one full time staff member, myself. I serve as executive director, general counsel, chief operating officer, what have you. And we have a board clerk who is not full time. So the staff processes processes and administers all filings to the board, which can consist of petitions to create a union or folks for employees in a municipal or state setting who want to organize. We we administer grievances, unfair labor practices, and impasses when it comes to bargaining for contracts. Mediation comes into play in connection with unfair labor practice and grievances as well as impasses. So once parties are engaged in agreements, which could be someone is terminated, someone suspended, they go through their internal grievance process, and then they can appeal that decision to the Vermont Labor Relations Boards. The parties can attempt to mediate or resolve the dispute on their own. And for approximately forty seven percent of all cases that come to the board are resolved by settlement of the parties, meaning the board does not reach the ultimate decision somewhere along the way after parties have filed either an unfair labor practice that has been, a complaint has been issued or a grievance. Some somewhere along the way after discovery, even after a hearing, the parties can decide amongst themselves to reach a settlement. I have reached out to practitioners who come before the board to determine how many of those cases they relied upon a mediator. From the initial responses I've been getting, and I haven't heard from everybody, and I want I will provide an update to this committee as well as the Senate Committee, which I I understand has a companion proposal as to the number of cases that folks have relied upon mediators to give you a better scope of the use of mediator in Vermont Labor Relations Board cases. But I am hearing that most of the cases, least from the folks that I've heard from, they've relied upon outside mediators to help facilitate those cases. Sorry to interrupt

[Rep. Ashley Bartley (Vice Chair)]: you. Could you, sorry, I

[Rep. Leonora Dodge (Member)]: heard you say 47% of all cases and then I didn't quite hear what that 47% refers to. Mediated? No.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: No, settle, meaning the we board does not reach the ultimate decision. Somewhere along the way, the parties themselves reach an agreement. And I'm trying to ascertain what percentage of that is the settlement is reached through the assistance of a mediator versus just having the parties sit it out amongst themselves to resolve the dispute. And last year, the board had 60 cases, 47% of those were resolved through settlement, not through, the board reaching a decision. That's to give you a perspective on the amount of cases that are settled versus reach ultimate resolution. When cases are mediated that the parties have, some certainty and it also allows for the board to resolve those disputes or have more time to resolve those disputes where the parties can't resolve it amongst themselves. Sometimes they may be more novel cases or cases where for, you know, whatever reason the parties are fixed in their belief in the rightness of their cause, which is perfectly appropriate and the board can, would resolve those those disputes. So that's a big background. So I can kind of continue with what with the board's recommendation or the board does have a recommendation the board thinks the proposal is a good one we have some questions or comments going forward but I'm not sure if the board excuse me the committee has questions for me or I just want to make sure I'm providing the information the committee is looking for.

[Rep. Ashley Bartley (Vice Chair)]: I think we would love to hear your recommendations. I know I personally have a question, I think before hearing your recommendations, does anybody on the committee have questions before I ask mine? So in your kind of background of the board, you refer to mediators. In my understanding of there was one federal or one mediator paid from federal funds, were there more than one?

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: The Federal Mediation and Conciliation Service is a federal entity, a federal organization that was staffed and paid by federal funds. There was a Albany region that provided mediators to Vermont from that region. Over the course of the past five years and decades, there have been a number of mediators who would have worked out of the Albany division serving Vermont matters. So in the recent past, there was one mediator, at least in my tenure, actually there's about two mediators in my tenure that were frequent flyers or the ones that the board would assign to mediate cases or the parties themselves would look to mediate cases. But the organization itself was you know, a a fairly robust mediation service providing mediation to both private con con conflicts or services to private employers and their unionized employees. For example, the UBM hospital. They are a private employer and the FMCS, I'm going use that acronym which is the FMCS has provided mediation services to it and to its workers when there have been disputes and when they've tried to negotiate contracts, collective bargaining agreement contracts. And they've reached an impasse or needed assistance in coming to agreements. So I think I answered that question, if you have more on that. Okay.

[Rep. Ashley Bartley (Vice Chair)]: I think I'd love to hear your questions and your recommendations, and I'll probably have a follow-up question.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: Sure. I that the house, I don't know the correct term for it, but it's kind of like an outline for proposal and the Senate has a little bit more than that, but it still needs to be fleshed out. One thing that in terms of assigning or creating a state mediator position is the recognition that there would need to perhaps be a mechanism for conflict or for a contractor. So for example, if you were to have one state mediator which could handle maybe the bulk of cases, you likely would need to have a conflict mediator or a contract with a series of mediators to handle overflow or to handle those cases where there might be conflict. For example, in New York State, they have on their staff, which is larger, obviously New York State Public Employment Relations Board, they have in house or in state mediators. And just to give you a sense of what the salary is, the salary in New York state is $1.15 $2.83 to $1.45 $6.08 2. Those those are the ranges, 115,283 to a $145,682,000 for upstate mediators. For downstate, meaning New York, Hudson Valley, New York City, Hudson Valley, there's an additional $4,000 bump for their salary. But in addition to having their in state mediators, they also have panel mediators, which are those that can handle the overflow or conflict. So for example, there might be a period of time, a lot of our state contracts expire and some municipal contracts expire in June, July. So there's a lot of activity leading up to that. And so there might be a time when there's you need more than one mediator available to help parties resolve disputes as well as, excuse me, negotiation impasses, as well as working on unfair labor practice or grievance matters. So you likely need more than just the one state mediator. You may need an off ramp for a panel of conflict mediators for folks to avail themselves of, if the state mediator is occupied, in other matters. So that's, kind of one issue to address. Another is, having the adequate space for the mediation. Since COVID, a lot of mediation takes place remotely, like I'm appearing remotely today. But, sometimes, depending upon the parties, parties may like to be near each other during the course of the mediation, and they might want to be in housed in the same location. And for mediation, you often need at least three rooms, a place where both parties get together to, you know, present their matters, and then they separate into separate caucus rooms, and the mediator kind of does shuttle diplomacy back and forth. Currently, the Vermont Labor Relations Board doesn't have the space to facilitate that. The state's committee, the committee, excuse me, the bill proposed, the state bill proposed directs BGS to provide that space. But in addition to providing that space, there needs to be funding for that space because BGS charges Vermont Labor Relations Board for its space. If this is going to be housed within the Vermont Labor Relations Board, any funding would need to recognize the space requirement to facilitate the mediation. We also had just some questions regarding I'm going to use the word accountability, but that's not quite the right word. But how

[Rep. Leonora Dodge (Member)]: to

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: the oversight if they are housed within the Vermont Labor Relations Board, the degree to which the board or myself as executive director have responsibility over that mediator. Ideally for any mediation to be effective, you want it to be, the the board would not know and should never know what takes place in mediation. That's confidential by statute and the the legislature made clear that parties that what takes place in mediation shouldn't be brought up in the context of hearings. We obviously wanna preserve that. So, we just wanna make sure that there are appropriate the legal boundaries between what takes place with mediation and what takes place with contested hearings before the board. The board can administer that, but I just want to we would want to make sure that that's those boundaries are maintained. Those are some of the bigger items that we had questions about. One, funding the provision for conflict or additional mediators or panel mediators or conflict mediators to take over where the parties to facilitate a choice of mediator, but also more importantly, if there's the state mediator is occupied with something else. Those were the two kind of big picture questions that we had, or wanted more information about.

[Rep. Ashley Bartley (Vice Chair)]: Great. Thank you, Judith. That was really helpful. Are there any other questions? Thank you. Thank you. I'm trying to understand the space requirement. Did you say three rooms? Yes.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: Yes. So mediation sometimes can happen on-site. For example, sometimes the mediator goes to wherever the parties are, for example, if it's, you know, the Department of Corrections, maybe the Department of Corrections has space to facilitate the mediation, but sometimes they don't have the space to facilitate mediation. There are private mediators, arbitrators in the state that some of them have space. For example, Marks Powers, they're a pretty robust mediation firm in the state. They have space on-site to facilitate mediation, but they also go elsewhere. And if you are going to have mediation, you usually need a space for if there are two parties involved in a dispute or negotiation.

[Rep. Ashley Bartley (Vice Chair)]: Yes. Yes.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: Yeah. They each get their own room, but then there's a common space. So, and the common space might be where, all the parties gather initially to articulate their positions. And so sometimes the mediations it's very important for the parties to hear what the other side's saying and also for them to convey their important issues to the other side. The act of just voicing what the concern is to the other side is very powerful. And having a space to do that may you know, and some mediations can facilitate the mediation process. So that's why I was it's not always required, but you ideally would want that space, you know, the common space and two separate spaces. Sometimes mediators just have two spaces and whomever has fewer people, the common space will be where they are so that the larger party doesn't have to lose their space. But that might convey, golly, we're being inconvenienced. This isn't our space. We're sharing our space. I'm just trying to give you ideally three, but it could be two.

[Rep. Ashley Bartley (Vice Chair)]: So Okay. Thank you. I'm just trying to just it was it was more for my brain to process and understand the necessity of because there is an appropriation attached to this. And so I'm just trying to understand the amount of use versus the appropriation and how much it is required and all of those things. So that's where my brain was framing. So thank you for that. Yeah.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: And and I could let you know that right now, the board makes use of a conference room that it shares with other state agencies within 6 Baldwin Street. So we share that space. So our hearings we have in that conference room, our board meetings we have in that conference room, We could make use of that conference room, but that's one space. We have one extra room in our office with a closed door, but we don't have the three spaces. So we have the conference room available, we have one extra room in our office space, but we don't have another secured space.

[Unknown Representative from Burlington (bill presenter for H.726)]: Yeah.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: And I could give you just to kind of in assessing what the salary range would be, just looking at what mediators charge within the state. So I had mentioned Marx Powers, you know, they're a very experienced and very reputable group of mediators. Their labor mediators charge up to $450 an hour. There are others that charge less than that. But, you know, dollars 400 an hour is not you know, that's a fairly common number. Some charge less, some charge less as an introductory fee. But just to give you a range of if you were to kind of rationalize or to justify the range that I gave you for New York, which is 115 to 145 approximately, looking at what the hourly rate is for mediator services, it requires experienced qualified individuals to perform that unique task.

[Rep. Ashley Bartley (Vice Chair)]: Great, well, thank you so much, Judith. This was very helpful. We now, I think, are going to move on to our next witness, who is Patricia Turley, who I believe is here. Yes. You can come on and take a seat in the front, please, and thank you. Have you been in our committee before?

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: It's been a couple years, so certainly not

[Rep. Ashley Bartley (Vice Chair)]: with everyone. So I think we'll just really quickly go around and introduce ourselves, and then we'll give you the floor. So I'm representative Ashley Bartley, I represent Fairfax in Georgia.

[Rep. Leonora Dodge (Member)]: Hi, Representative Leonora Dodge for Essex Town and City Of Essex Junction.

[Rep. Thomas "Tom" Charlton (Member)]: Tom Charlton, I represent Athens Chester Windham.

[Rep. Ashley Bartley (Vice Chair)]: Representative Gayle Pezzo, I represent Chittenden Twenty in Culchefstad. I'm Mary Howard and I represent Rutland City District Six. Saudia LaMont, Lamoille Washington District.

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: Laura's yours, I am Patty Turley. I'm here from the Vermont State Colleges. I am the general counsel. So we are often in a place where we utilize the services of the federal mediator that was available through federal mediation and conciliation services. And we work with six different labor unions. There are actually seven, but one of them operates jointly. So we have six different units within our Vermont State College system. And if in our negotiations, we reach impasse, we're governed under CELRA, the State Employees Labor Relations Act, and we petition the Vermont Labor Relations Board to proceed to a mediator at impasse. And that is set out in the statute. So it's not a step that we can skip, it's part of the statute and we welcome it because it's been highly successful for us in most regards. In previous years and long before my involvement at the Vermont State Colleges, the Vermont, the VSC and its unions have utilized the services of the Federal Mediation and Conciliation Services. So that's a longstanding relationship. If we reached impasse, or even if we were starting to reach impasse, someone would often reach out to the mediator who we most typically worked with and just say, Hey, do you have stuff on your schedule? Do you have any availability? We might need your services. So there was that kind of ability to get on the schedule or get a sense of the schedule. This allowed for a smoother transition to mediation. Sometimes it was the union that reached out, sometimes it was us. That was not a problem. And as you have heard of the situation with the federal mediation and conciliation services has been dire. They lost most of their workers. I'd had several conversations with the mediator that we worked closely with all those years as this all started coming down and she started ping ponging around different statuses and then was gone. Experienced work staff there and what was important to us was that this mediator knew CELRA, so understood Vermont's law on unions, on the labor relations. She knew us, she was very familiar with our contracts. Actually knew many members of the bargaining teams because there are often similar folks every two or three years. We tend to have to bargain, not have to, but we bargain our agreements as we update things with our employees and many of them are on team after team. So she would know folks from year after year. She understood the Vermont landscape as well and our wages, our benefits, that situation. So that familiarity was very important to us. We didn't have to bring her up to speed on that. That was something she knew. And of course, she worked with many other unions and employers in the state. So it wasn't just us. Also, so the mediation process, as Ms. Dillon explained, it has to be confidential. And so federal mediation and conciliation services didn't have a role in the next step if we didn't resolve this situation. They would notify the labor relations board that mediation was not successful, and then we would proceed to the next step in the statute. The confidentiality piece is absolutely critical. Not only is it in the law, but that's, it's just the basics of how mediation works well, because mediation allows you to explore ideas and maybe put out some feelers on something through a mediator, as opposed to in the bargaining table where we can't really, we can explore things, but it's much harder to explore things because you have to be able to stand behind what you put on the table in your negotiation itself. And in mediation, you can explore things a little more. So it's very valuable that way. So we're really grateful that the SAWR contains this mediation requirement before we get to a next step on collective bargaining agreements. And having a mediator available through the Labor Relations Board would fill the gap that we now have. I understand the bill and maybe it's broader than what I was understanding. I'm not sure what the discussions have been, but the bill that I read, which I understand it's in the drafting process, this is in a slightly different place. So I understood it to be aimed at collective bargaining, which is different from grievances and unfair labor practices in front of the labor board. We don't use mediation as often with grievances and unfair labor practices. We can and we sometimes choose to, but we don't as often. They're in a different place than the collective bargaining agreements where we So I did not go back and look at how many times have we used mediators and those other kinds of actions that are in front of the board. And I think notably, the statute doesn't require that we use a mediator before we go to the board on a grievance. If grievance gets forwarded to the board, I don't believe it requires that we use a mediator, although often we might. From our perspective, I did wanna give you a little bit of information about our most recent history.

[Rep. Ashley Bartley (Vice Chair)]: Can I interrupt you really quick? Yes. When you say you petition for mediators, who are you petitioning to? Are you petitioning to the labor relations ward? Are you coming to the levying services?

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: We petition the labor relations board, and the way this has always worked in the past, and now it's unclear because we don't have that mediator. We would usually do a joint petition because we've all agreed we're at impasse and that it's time to go to the mediator. And we have usually made that contact with mediator, and we suggest to the board that we are at an impasse and we petition to go to the mediator and we name that mediator, and the board approves it. If they didn't approve it, I guess something else would happen. The petition is a little routine, but it is an important step, it's as required by the statute.

[Rep. Ashley Bartley (Vice Chair)]: There's no fee associated with petitioning. Correct. Okay.

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: That's correct. There's no fee. We don't fees for We don't pay a fee at that stage and we didn't pay a fee to the mediator even though services were provided free to us because we were a public sector employer.

[Rep. Leonora Dodge (Member)]: You have other questions, I'm

[Rep. Ashley Bartley (Vice Chair)]: just letting you They kind

[Rep. Leonora Dodge (Member)]: of naturally were answered. Okay. So, wow, I don't think I quite understood until now that the statute requires mediation at some point.

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: In the collective bargaining process, Right, which is a

[Rep. Leonora Dodge (Member)]: and so if we were to stay silent on this, if we did not have this bill, would you basically be unable to finish the collective process of bargaining problems?

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: I would hope not. Would hope to a private mediator that

[Rep. Leonora Dodge (Member)]: may or may not know you, that may or may not know the history, that would have to be brought

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: up to speed, that may be All those things. Sorry.

[Rep. Ashley Bartley (Vice Chair)]: Can I interrupt? Yeah, yeah. With a private mediator, he would then Pay. Have to pay, correct? Both That's sides would have to

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: correct. And the fees, most typically with a private mediator, are split between the parties. So if it's $400 an hour, then each party would pay the $200 an hour.

[Rep. Leonora Dodge (Member)]: Imagine, and I think we heard this in the walk through, that this new situation of having to pay for, know, even sharing the costs of paying an hourly fee of contracting a mediator would discourage might discourage people accessing this service. On the other hand, what's new is this fact that the statutes say that you have to at some point.

[Unknown Representative from Burlington (bill presenter for H.726)]: I'm

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: board shall, within five days, appoint a mediator who shall communicate with the employer and the employees.

[Rep. Leonora Dodge (Member)]: But is that upon request or is that mandated within the process?

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: Mandated within the process. So it is built in that the assumption is we will mediate. I suppose if we couldn't find any mediators, we could say that to the board and then go directly to fact finding. But it's a valuable step to miss. Even Yeah. If it wasn't in the statute, really good. All right. Okay, thanks.

[Rep. Ashley Bartley (Vice Chair)]: So looking at the bill that we have in front of us, the board may employ a mediator to provide free continue, and there is an appropriation for $115,000 From Judith's testimony before you, and kind of from our conversations with you right now, I'm concerned that in the scope of things, a single mediator would not be enough. Is that a concern that you would also have? If the mediator

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: So the bill, as I understand it now, is about collective bargaining. So that doesn't happen as often as grievances. Grievances happen more often. Collective bargaining happens every probably two, three, maybe four years between the parties. So for us, most of them are two to three years.

[Unidentified Committee Member]: Most of our contracts run

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: two to four years. So that would not be a huge concern for me to have one mediator, but it also describes public and private sector collective bargaining. And my concern is that as publics, we are required to go to mediation in the collective bargaining. So I don't know if there's a way to address that if that mediator is not available. I don't know. It's a very good concern, especially if it's beyond collective bargaining. And I'm just, sorry,

[Rep. Ashley Bartley (Vice Chair)]: I wanna be forward thinking in the sense that we have Prop three, thank you, coming to us in 2026 under the assumption that it does pass, then it opens it up to all, like this says, public. And that would be a bigger undertaking as well for one individual.

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: I agree. So I think those are legitimate concerns. I don't know what the right number is or what it's good to start at and then you move on from there.

[Rep. Leonora Dodge (Member)]: Thank you, Jamar. Yeah, I don't know that it would be one for you to answer, but I don't know whether private employers are currently mandated to go into the mediation at impasse, and whether they avail themselves of the federal. Judith, this might be a question for you, you're still around, whether you would refer private employers to the same free federal mediation service.

[Judith Dillon (Executive Director, Vermont Labor Relations Board)]: Sure. The board doesn't have jurisdiction over private employers. So the board does not mandate or authorize private employers to engage mediators, but the National Labor Relations Board does. And so I believe, and I could confirm my understanding, that there's a similar process under the federal statute for mediation during the contract impasse stage, which attorney Turley has provided for you. But that's not a stage that's not within the jurisdiction of the board. I also wanted to point out, in addition to CELRA, which is the State Employee Labor Relations Act, which governs the relationship between labor and management for state employees and also state colleges, UVM, There's also the municipal statute. And under the municipal statute, the where parties reach an impasse, they go to the Department of Labor requesting mediation. It's my understanding based upon communications with practitioners and also David Belanger who for years worked with under that statute, and David is a member of our board, that the Department of Labor, similar to the process that attorney Turley described, that the parties similarly went to FMCS to contact the mediators to say, hey. We have a conflict. Would you be able to assist us with this impasse? Then they'd go to the Department of Labor and say, we have an impasse. We'd like you Department of Labor Commissioner to appoint mediator x to help us facilitate this impasse, to resolve this impasse. So with respect to any proposal that includes both public and private, the public to the extent the process or the step to appoint the mediator may be different, whether it's Department of Labor or the Vermont Labor Relations Board. If there were were a mediator, that mediator if there were a state mediator, I would imagine or I would I would recommend that that mediator be available to do all of the mediated disputes within the state, within Vermont. FMCS, and I'm sorry if I'm saying more than you want, for years was providing the service under the Vermont statute. That wasn't their mandate. They did it because of the need and provided it to they expanded the scope of their action or jurisdiction beyond NLRB to assist Vermont labor management disputes. So that's a little bit of, I don't know if that was helpful or not, but.

[Rep. Ashley Bartley (Vice Chair)]: Thank you. You can continue.

[Rep. Leonora Dodge (Member)]: Well, do have a,

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: I think it might be helpful for you to understand over, so since July 2020, when I started at Vermont State Colleges, we have had 15 different contracts. It's a little unusual, it's probably more than usual because of COVID and then the transformation to the Vermont State University, we carried forward some by just a year at a time, and they were a new contract just with a really narrow scope. But we used the federal mediation services 10 times out of those 15 contracts. And two or three of the ones that we didn't use it for were just those almost carrying over very simple, just updating a wage, for example. Only one of those 10 went to a fact finder. So we used nine out of the 10 helped us resolve the contract. Only one of those 10 went to a fact finder. And then after the fact finders report, we were able to resolve with the help of a mediator, but not federal conciliation services. We were able to resolve that one contract. So that's just some history there. The 10 of the 15 that we did use those services, a couple of those are a couple of the five, they almost don't count, of course they count, but we didn't have a lot of high negotiations to do with those. And the nine of the 10 settled, often with two or three mediation sessions. This is not something that we got done in one mediation session very often. We did often go fast. One of the concerns that I would have, I have to express concern, is just echo what Ms. Zilie said, and that is that because the mediator's information and work is confidential, there would need to be a mechanism to make sure that the board wasn't privy to that information as they came into making their solutions if it went that far. That just protects the integrity of the mediation. Thank

[Rep. Ashley Bartley (Vice Chair)]: you so much.

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: Thank you.

[Rep. Ashley Bartley (Vice Chair)]: David, do you want to come join us?

[David Mickenberg (Working Vermont)]: Good afternoon. David Micenburg here on behalf of Working Vermont. I found I'll need to review what Patty and Judith already emphasized, which is the serious loss that we suffered as a result of what happened with the gutting of the federal mediation services. I think they reduced their mediators by the numbers, 9293%, which has caused a significant issue for folks in Vermont and in the region. So we see this bill as a potentially positive step forward. Would, there may be some restraints on their ability to handle it all, but we don't see why it wouldn't cover both grievance mediation and collective bargaining. I

[Rep. Ashley Bartley (Vice Chair)]: think that's just how the bill was written Yeah,

[David Mickenberg (Working Vermont)]: so it says collective bargaining, but I don't see why we wouldn't include the ability for the mediator to do grievance mediation since that was within the scope of what the federal mediators would do. Does that mean that we need another one? Know, Ms. Dillon has already suggested that we need some type of panel or something else. So there may be a need to expand the scope of this, but I think this is a good effort to help deal with something which again, as we discussed last week, which the current situation in Washington has now put additional burdens on us as a state, and this is one example of that. One thing that we would suggest, last year there was in a Senate bill, a position for an additional attorney at the Vermont Labor Relations Board. I think since this is a bill about that, if you wanted to include that, if that position again, we think that the board is is still unsaid, it's basically her and a clerk, the board. It's a really important function that they play. We think from the labor union perspective that the board is understaffed and has caused at least, and I don't know what the current backlog is now, but in the past it has been years before things had moved forward in some cases. So we would suggest that in addition to what you're doing here, we revisit the issue of adding an attorney position to the Vermont Labor Relations Board to assist with the tremendous amount of work that they do really well, but it's just, it's a lot for one person to take on. Happy to provide that language. I think the appropriation last year for the attorney position was like 150,000. So other than that, they'll

[Rep. Ashley Bartley (Vice Chair)]: have much more to offer. Does anybody have questions? I have questions. Probably, next year. There are going be questions I've already asked today, but would love your input. Again, this is just one mediator, so I'm assuming it's just gonna be one FTE, just going by how the language is right now, but with the understanding how would you handle it if Prop three does pass, and what would your recommendation be? Currently, this says public and private sector. As we talked about, private sector does not have that requirement to go to mediation. I would just love your thoughts.

[David Mickenberg (Working Vermont)]: Yeah, I mean, obviously we hope that Prop three passes. We're encouraged by the response so far. We don't think that it's going to cause a dramatic increase in immunization, so I'm not that concerned about about the one here.

[Rep. Ashley Bartley (Vice Chair)]: And if we weren't to move forward with this bill, both sides would have to agree to find a mediator, and then pay said mediator, and then even if you're studying the costs, private mediators are expensive. Could you give us a guesstimate or anecdotally what kind of cost savings this bill could provide?

[David Mickenberg (Working Vermont)]: I would have to go back and survey the various unions to see how often they've been using federal mediation services, but I know mediators can be, I mean, my practice as an attorney, mediators in general have been anywhere between $250 an hour. That's I think Mr. O'Halley said in my form. And certainly they're, ones with familiarity with labor issues are not that prevalent. So I think it'd be, this would be really helpful in terms of preventing delay and preventing either whether it's in a collective bargaining situation or grievance mediation from the delay of resolution. And that delay can cause a lot of tension between the parties. As we heard from both witnesses, more often than not mediation, and we know that in civil practice, more often than not mediation can be a really effective way of resolving these disputes, prevent, which will then alleviate further

[Rep. Ashley Bartley (Vice Chair)]: expenses of going to the next level of social. Would you be concerned about both sides being able to just choose a private mediator?

[Patricia "Patty" Turley (General Counsel, Vermont State Colleges)]: I think no. If we

[Rep. Leonora Dodge (Member)]: didn't have somebody who's paid by the state to do it, who's essentially a third party, whereas somebody that's another issue for labor and management to fight about is which mediator.

[David Mickenberg (Working Vermont)]: Yeah, I mean, it happens now. They don't always use the federal mediation services, private mediations, it happens now. From my knowledge, I don't think it's been a

[Rep. Ashley Bartley (Vice Chair)]: problem. Sorry, you just keep talking. I keep having a more questions. Do you know the percentage, again, anecdotally, of who uses private versus how many uses the I

[David Mickenberg (Working Vermont)]: don't.

[Unknown Representative from Burlington (bill presenter for H.726)]: I'm

[Rep. Ashley Bartley (Vice Chair)]: sorry. No, that's okay.

[David Mickenberg (Working Vermont)]: That's all my questions. Thank you, I appreciate it. So just in some, our recommendation, this is a good start, perhaps expand it to beyond collective bargaining to grievance mediation, and put in an attorney position for the board to deal with their, a really sort of significant amount of work that they have, so.

[Unknown Representative from Burlington (bill presenter for H.726)]: Great, thank you. I've got a question.

[Unidentified Committee Member]: Sure. In professional opinion, do you think that the amount of tremendous expense of hiring a mediator is a deterrent from getting to the point of mediation and settling?

[David Mickenberg (Working Vermont)]: I guess it depends on the, well, at least from the union side, I mean, I won't speak for employers, but I think from the union side, I guess it depends on the size of the union. Sometimes it's a serious factor and other times less so, but it's certainly a factor, and I think unions try to really be conscientious that their members do this and how to spend them and to not. And that's why this federal mediation services was such a wonderful thing. Very unfortunate that it's been guided by the current administration. It's certainly a factor. I know if you're comparing it to civil litigation, certainly in civil litigation, the cost of litigation is absolutely, absolutely an issue. The nice thing about mediation is that either in the labor law context or civil litigation is that the mediation can be your best and least expensive way of resolving a dispute before it goes to?

[Unidentified Committee Member]: Yeah, I was actually thinking about my time on the school board negotiating teacher contracts and the fact that there is such a dearth of mediators who have the expertise of Vermont education law. So you really have to paint through the nose to hire somebody from the state of Vermont. That was a huge deterrent for both parties, And so I just wondered whether I only have that context, I just wondered whether that was something that was true for a broader

[David Mickenberg (Working Vermont)]: context. Yeah, mean, I'm stretching back into early parts of my career when I was doing collective bargaining negotiations. I worked on a, it was like a 12 member union, the police union in Milton, which was 12 members and so costs and expense was a factor and certainly we would work hard to try to resolve issues before it went to a point where we're having to split the costs of backbinders or mediators, absolutely. And there are a lot of small unions like that. Think Caledonia, LiUNA represents the TPW of CALUS, I think it's five or six people, you know, so small bargaining units. Thanks. Sure. Maybe even four. Maybe it's four. It could be, yeah.

[Rep. Marc Mihaly (Chair)]: Any other questions of Dave? Or Patty? Or Judith? They're all here. Well, thank you for the three of you for taking time out of your busy days. Of course. To spend with us on this important issue. And the committee, I think, well, the next step will be for us to discuss the bill at some point and possibly even work up instructions to council. But at this point, I think we're going to move on. I think perhaps we ought to take a break. The next two items are bills, two bills, one of which I am listed as the sole sponsor, and that is the fool's errand of a compromise landlord tenant bill, and the second is a bill where I am listed as the sponsor, but in fact, both the illustrious member of our committee, Charlton, is also a sponsor, and so we will jointly present it to the committee. Think what we should do is take a break for and it's now just a little more than five after. Let's try to come back here by 02:20, which would give you a little more than ten minutes, alright? So, we are going to

[David Mickenberg (Working Vermont)]: go

[Rep. Marc Mihaly (Chair)]: offline, we'll be