The Commonwealth of Virginia has gone “all-in” to empower organized labor in local governments across the state by requiring localities to recognize and bargain with union officials regarding public employees’ employment and service. The consequences for the public treasury, delivery of services, and individual employees’ rights will be significant. Localities face a daunting, new financial obligation to expend local-government treasury funds first to measure the gravity of the state mandate and determine their response, and then to develop, fund, and operate a bargaining process without a source of new dollars (which the General Assembly and Governor Ralph Northam did not provide).
For decades, Virginia Code § 40.1-57.2 expressly denied to the state, as well as counties, municipalities, and towns in the Commonwealth, any authority to recognize a labor union as a bargaining agent of public employees, to bargain collectively, or to enter into any collective bargaining agreement with respect to public employees’ employment or service. In 2020, however, without committee investigation or public comment, the General Assembly and Governor Northam reversed course, amending the statute and effectively eliminating the non-union rule for localities. The revised Code section, which is scheduled to become effective May 1, 2021, will permit counties, cities, and towns, by local ordinance or resolution, to recognize labor unions as the bargaining agents of public employees and to enter into collective bargaining agreements with respect to any matter relating to them or their employment or service.[1]
On the surface, the statute frames the bargaining decision as an option for localities. If a locality adopts an ordinance or resolution under the statute, however, it must also adopt procedures for certifying unions as bargaining agents: “Any such ordinance or resolution shall provide for procedures for the certification and decertification of exclusive bargaining representatives, including reasonable public notice and opportunity for labor organizations to intervene in the process for designating an exclusive representative of a bargaining unit. As used in this section, ‘county, city, or town’ includes any local school board, and ‘public officers or employees’ includes employees of a local school board.”[2]
This option is presented as a “front door” of sorts for union organizers to enter the public-sector workplace and compel recognition.
The “Choice” Offered to Localities is not a Choice at all.
The statute offers an ostensible choice between dealing with a union or not, but the offer is really one that localities cannot refuse. If a locality fails to adopt a procedure for conferring exclusive representation privileges on a union, the law provides union officials an open, back door for entering the public-sector workplace. Specifically, if a union demanding representation provides “certification from a majority of public employees in a unit considered by such employees to be appropriate for the purposes of collective bargaining,” then the governing body of the locality shall “take a vote to adopt or not adopt an ordinance or resolution to provide for collective bargaining by such public employees and any other public employees deemed appropriate by the governing body.”[3] The governing body’s mandated vote is required within 120 days of receiving notification of the employees’, i.e., the union’s, claim of majority status. Under this organizing scenario, the locality’s only decision is whether to recognize and bargain with the petitioning employees, i.e., the union.[4] The power to initiate and compel compliance with the unionization process is unique because it is unilateral and possessed only by the union, a private, self-interested party. Every other suiter demanding negotiation over a local government contract on every other subject may be rejected.
While the statute declares that “[n]othing in this subsection shall require any governing body to adopt an ordinance or resolution authorizing collective bargaining,”[5] as a practical matter, the otherwise broad cession of sovereignty which the law perpetrates dims the prospect that elected officials will effectively consider the matter from the standpoint of public employees and taxpayers. In enacting the law, the General Assembly and Governor reassigned substantial sovereignty to unelected union officials who will have the power to compel localities’ governing bodies to consider matters their constituents have not previously persuaded them to take up. Beginning May 1, 2021, the new statutory regime will push localities to recognize and bargain with unelected, self-interested third parties over a wide range of issues affecting public employees, taxpayers, and consumers alike. Localities will have to respond.
The Consequences of Public-Sector Monopoly Bargaining are Real.
Public-sector bargaining will be new to Virginia localities, but the problems ahead will have been predictable. The statute fundamentally alters the delicate system of checks and balances that have long protected the Commonwealth from undue influence by self-interested parties. Effective May 1, 2021, new seats at localities’ governing tables could be occupied by powerful special interests unaccountable to voters and consumers of government service. In many cases, the same powerful special interests will have contributed in-kind and financially to the governing body members’ election campaigns. As a result, elected decisionmakers may find themselves sitting on the same side of the table as the union organizers, and by the time they receive a union’s “certification” demand, the result of any vote prescribed by the statute may be a foregone conclusion. Even before getting to the table, in advance of any demand for recognition by the union, local government decisionmakers can expect union officials to pressure them to negotiate informally as a means of expediting matters once the parties meet at the table.
Experience in other states that have enacted public-sector bargaining schemes suggests that union officials’ political power, which is substantial both nationally and in the Commonwealth, will dramatically influence members of governing bodies to accept union officials’ demands.[6] In public education, for example, a mountain of evidence exists to establish that compulsory unionism hurts schoolchildren, parents, and taxpayers as well as teachers. University of Texas at Dallas economics professor Stan J. Liebowitz and research fellow Matthew L. Kelly found that “union strength . . . has a substantial and statistically significant negative relationship with student achievement.”[7] Their research included analysis of union strength and student test performance in the states, and they scored states based in part on student test performance. They examined states’ relative rankings on a range of metrics and the consequences of a shift in union strength in public schools. They concluded:
“[A] state [going] from having the weakest unions to the strongest unions . . . would move a state down about 45 percent of the way through this total range, or equivalently, alter the rank of the state by about 23 positions. This is a dramatic result. . . . This negative relationship suggests an obvious interpretation. It is well known that teachers’ unions aim to increase wages for their members, which may increase student performance if higher quality teachers are drawn to the higher salaries. Such a hypothesis is inconsistent with the finding here, which is instead consistent with the view that unions are negatively related to student performance, presumably by opposing the removal of underperforming teachers, opposing merit-based pay, or because of union work rules.”[8]
University of Chicago law professor John Lott and University of Florida economist Lawrence Kenny also proved what many parents and students know from their own experiences: students learn less in states with stronger teachers’ unions.[9] Lott and Kenny looked at standardized tests taken by fourth- and eighth-graders in reading and math and found that, regardless of the subject or grade level and regardless of whether they focused on absolute scores or improvement between fourth and eighth grade, “an increase in teacher union dues and expenditures leads to lower student test scores.”[10] Based on their research, they concluded:
“[S]tate-wide teachers’ unions are often successful in influencing state regulations on education by being the major contributors to candidates for the state legislature. The state-wide teachers’ unions that contribute more are expected to exercise more influence and thus be stronger unions. We . . . find that students in states in which the teachers’ union has high dues and high spending have lower test scores than students in states with low dues and spending. Union strength matters and indeed matters more than any other variable in our regressions.”[11]
Monopoly bargaining power in the hands of teacher union bosses results in a variety of ills that continuously challenge public education. For example, union officials routinely wield their legally-mandated bargaining power to perpetuate “single salary” schedules[12]that frequently are a bad deal for teachers. Teachers with low seniority, teachers qualified for hard-to-fill positions in subject areas such as calculus, chemistry, and English as a second language, and many other teachers who do an especially good job suffer with below-market pay caused by rigid union salary schedules.[13] Similarly, teacher union officials are generally unrelenting in demands for small class sizes because smaller class sizes typically mean more teacher hiring, which drives up teacher union membership and dues receipts. The problem for schools, students, and parents, of course, is that the empirical evidence largely fails to find that smaller student-teacher ratios and class size improve student performance.[14] Other priorities of union officials at the bargaining table include rules against firing teachers that are so extreme that some school systems have to warehouse hundreds of teachers who cannot be trusted in the classroom.[15] Union featherbedding, pension padding, and costly early-retirement schemes also deprive local government decisionmakers of scarce resources, resulting in state and local government insolvency.[16]
Union Organizers may Ignore Well-Established Standards for Protecting Employees.
Apart from imposing a seismic shift in governing checks and balances and ceding sovereignty to unelected third parties, the new bargaining statute’s mechanics are designed to give union officials extraordinary power to manipulate public employees and the organizing process. Missing is any protection against union manipulation of employees and abuse of process to obtain what the statute calls the “certification from a majority of employees.” Notably, the statute does not specify what the “certification” must certify, including whether the certification must even be that a majority of public employees actually want the union to become their exclusive representative.
In organizing campaigns, union organizers often collect signatures at employees’ homes, before families and children, and the Virginia statute includes no provision to protect employees from union coercion. Organizers tell employees unfamiliar with unionization methods that the card or petition that they are imploring the employees to sign asks only for a secret-ballot election at which employees will be able to cast their votes.[17] Organizers obscure the fact that union authorization cards routinely have significant legal consequences for employees. Employees are pressed to sign or click without being informed that they could be waiving their rights to represent themselves in individual negotiations with the employer.
The cards also may include applications for union membership without any instruction about internal union rules that permit the union to impose fines and other disciplinary action on employees. The union organizer commonly fails to advise employees about authorizations for withholding union dues from paychecks and restrictions on the right to escape the union if and when employees realize later that the union oversold itself or misled them. Virginia’s bargaining statute may lead to legal challenges by employees claiming violation of their constitutional freedom of association.
The statute also provides no process for substantiating a union’s claim of majority status, which leaves the union to its own devices to select the basis on which it will present a claim that a majority of employees actually supports the union as an exclusive representative. Whether union organizers attempt to enter a locality’s workplace through the statute’s front or back door, public employees can expect to face union organizers pushing them to sign authorization cards or to click some form of authorization button on a union website or mobile application. Union card-signing campaigns, including online, typically occur without any notice or opportunity for the employer to educate employees, and for employees to learn, about the risks associated with designating a union as the monopoly representative of employees. Union officials’ abuse of card checks as a means of glossing over whether a majority of employees in an appropriate unit want the union in the workplace is well-established.[18] Some organizers mislead employees to get them to sign cards. Some outright lie. Some pester or intimidate employees until they relent and sign a card to end the coercion. Card checks are notorious for their unfairness and inaccuracy as a means for measuring employee support for or opposition to a union.
The State Mandate Grants Privileges to Union Officials to Decide who is Unionized and how.
Other aspects of the bargaining mandate contravene well-established labor law principles relating to the scope of the bargaining unit. The statute gives union officials unilateral control over the scope of the unit of employees over which they will demand monopoly bargaining rights. If a locality does not adopt a unionization ordinance or resolution, then union organizers will have the power initially to define the bargaining unit by specifying the job classifications, departments, and locations that are included and excluded from the unit.[19] By determining the composition of the unit, the union can enhance its prospects for success and expansion as it sees fit, without regard to the unreasonableness of compelling the locality to recognize and bargain with a union representing a disjointed segment of the employee population. For example, by starting with a small “micro-unit” consisting of a single job classification, department, or work location, a union can establish a toehold to organize other classifications, departments, or locations. Its power to exclude employees with interests that are common to the interests of the employees in the union’s self-selected micro-unit can be detrimental to the employees and the locality.
In providing for the union unilaterally to determine the scope of the bargaining unit, the statute denies the possibility of any reference to objective reasonableness with respect to the scope of a unit. On this point and others, the law departs from well-established labor law principles. For example, under the federal National Labor Relations Act, which governs the unionization process applicable to most private employees in the United States, whether a particular bargaining unit is appropriate for purposes of collective bargaining is decided not by the union or employees. Rather, the National Labor Relations Board and ultimately federal courts determine the scope of the unit by relying on various objective factors including differences in supervision, job functions, work locations, and the extent of common interests among the range of employees at an employer.[20] The Virginia statute, on the other hand, prescribes that union officials and public employees will have the power to define the bargaining unit, requiring only “a unit considered by such employees to be appropriate for the purposes of collective bargaining . . . .”[21]
The Statute Does not Limit What can be Bargained.
The statute’s bargaining mandate also has no meaningful limitations on the scope of subjects about which the locality will be required to bargain, which means that union officials have a license to demand bargaining on matters on which localities will be loath to negotiate. The statute prescribes that, upon a locality’s adoption of an ordinance or resolution, the locality’s authority is to recognize a labor union and bargain collectively “with respect to any matter [relating to public officers or employees] or their employment or service.”[22] The inclusion of public employees’ “service,” as opposed to mere “employment,” provides a basis for organized labor to demand bargaining over public employees’ participation in localities’ services to consumers, which effectively may mean bargaining over the services themselves. In collective bargaining relationships, unions routinely demand to bargain about matters that are customarily vested within management’s rights, and the statute’s broad scope of negotiable issues could have dramatic results for local governments endeavoring to deliver services consistent with consumers’ requirements, as opposed to those of unelected union officials. Union officials in the public sector routinely prioritize their demands for privileges for union officials such as withholding of union dues from employees’ paychecks and government-paid time in service of the union, which effectively funds union political activity at the expense of taxpayers, schools, and public safety and health.
The statute’s mandated shift of sovereignty from localities to union officials will lead to other consequences and issues beyond the limited scope of this article, including how bargaining impasses are to be resolved, the locality’s ultimate authority to impose its terms after conferring with a union, and any process for the locality’s resolution of disputes under any collective bargaining agreement.[23] The state’s mandate that the procedures required for certification of union officials as the monopoly bargaining agents of public employees noticeably omits any mandate that employees remain union-free or to refrain from concerted activity. Legal challenges undoubtedly will arise with respect to individual employees’ First Amendment freedoms to associate with others and to refrain from doing so, protections against withholding of dues or fees from their pay, and related compulsory unionism abuses. The statute provides that no elected constitutional officer is vested with or possesses any authority to recognize and bargain with a labor union as a bargaining agent of any public officers or employees. The scope of this exclusion also may be disputed.
Localities Should Plan to Protect Employees and Consumers of Government Services.
For decades, officials at teacher unions and public-employee unions in other states have benefited under public-sector bargaining statutes. With support from union-friendly legislators, public-sector union officials have used legislation to increase union treasuries with dues and fees, even while private-sector union officials have seen decades of declining private-sector union membership. Public-sector union organizers are on very familiar ground and will maneuver promptly to turn the Virginia bargaining statute to their advantage. Local government officials and employees, on the other hand, are in wholly unfamiliar territory. Until now, localities have not had to face the consequences of any mandate that they recognize and bargain with any union official. They will have to catch up quickly to avoid mistakes that could cede even more power to union officials.
Localities will first have to decide how they will respond to the state’s mandate and whether they will work to stay union-free, including by educating public employees about the unionization process and why a union is not in their best interests. Employers that actively educate employees about labor relations matters, including risks to employees, generally are more likely to stay union-free. While the Virginia bargaining statute mandates much, it does not prohibit localities’ freedom to speak openly to their employees about how self-interested union officials may harm employees’ interests.
Governing bodies also will need to decide whether to enact an ordinance or resolution providing for a certification and decertification process, i.e., a “front door” process, or instead to wait passively for union organizers to choose when they will use the “back door” to compel a vote on whether the locality will recognize and bargain with the union. The front-door approach is proactive and may permit localities more procedural control and an ability to protect public employees and the localities themselves. The back-door approach, on the other hand, may permit a governing body to put off difficult issues in the short term, albeit with significantly less certainty as to their resolution when the issues ultimately arise. The price of the delay, however, is the risk that the locality will lose control over the process and possible loss of even more power to union officials over the long run. Either way, the decision must be made so that public officials can do their best to confront the cascade of issues that will follow and to protect the citizens they are elected and hired to serve.
End Notes
[1] Va. Code § 40.1-57.2 (effective 2021).
[2] § 40.1-57.2.A.
[3] § 40.1-57.2.C.
[4] The mandated process is designed to allow union officials to control the organizing process. Under the statute, the union’s power to intervene is unrestricted and presumably would apply even in cases in which employees have initiated concerted activity without union involvement. See § 40.1-57.2.A. (requiring localities’ ordinances and resolutions to include “reasonable public notice and opportunity for labor organizations to intervene in the process for designating an exclusive representative of a bargaining unit.”).
[5] § 40.1-57.2.C.
[6] G. Gregory Moo, Power Grab – How the National Education Association is Betraying Our Children, 112-13 (Regnery 1999) (1999).
[7] Stan J. Liebowitz and Michael L. Kelly, Fixing Bias in Current State K-12 Education Rankings, Policy Analysis No. 854, 12 (Nov. 13, 2018) available at https://www.cato.org/sites/cato.org/files/pubs/pdf/pa-854-updated.pdf.
[8] Id.
[9] Johnathan Lott & Lawrence W. Kenny, State teacher union strength and student achievement, 35 Economics of Education Review 93-103 (2013).
[10] Id. at 102.
[11] Id.
[12] Nat’l Ed. Ass’n, 2019 Handbook 281 available at http://www.useaut.org/assets/docs/2019_NEA_Handbook.pdf.
[13] Greer, Stan, How Monopolistic Teacher Unionism is Undercutting Math and Science Education, Nat’l Inst. for Lab. Relations Research, Inc., Nov. 29, 2017, https://nilrr.org/2007/11/29/how-monopolistic-teacher-unionism-undercutting-math-and-science-education/.
[14] Stan J. Liebowitz and Michael L. Kelly, Fixing Bias in Current State K-12 Education Rankings, Policy Analysis No. 854, 13 (Nov. 13, 2018) available at https://www.cato.org/sites/cato.org/files/pubs/pdf/pa-854-updated.pdf; Mallory Factor & Elizabeth Factor, Shadowbosses – Government Unions Control America and Rob Taxpayers Blind 140-41 (Center Street 2012) (2012) (“Out of 112 studies researching the impact of class size on student performance, 103 studies concluded that smaller class size did not improve student performance at all.”).
[15] Karen Matthews, 700 NYC teachers paid to do nothing, Associated Press, June 22, 2009, available at https://www.nbcnews.com/id/wbna31494936, accessed Nov. 30, 2020.
[16] Mallory Factor & Elizabeth Factor, Shadowbosses – Government Unions Control America and Rob Taxpayers Blind 140-41 (Center Street 2012) (2012).
[17] Dana Corp., 351 NLRB 434, 438-39 (2007) (“For a number of reasons, authorization cards are admittedly inferior to the election process. First, unlike votes cast in privacy by secret Board election ballots, card signings are public actions, susceptible to group pressure exerted at the moment of choice. The election is held under the watchful eye of a neutral Board agent and observers from the parties. A card signing has none of these protections. There is good reason to question whether card signings in such circumstances accurately reflect employees’ true choice concerning union representation. Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing (except that if enough workers sign, the employer may decide to recognize the union without an election). Second, union card-solicitation campaigns have been accompanied by misinformation or a lack of information about employees’ representational options. As to the former, misrepresentations about the purpose for which the card will be used may go unchecked in the voluntary recognition process. Even if no misrepresentations are made, employees may not have the same degree of information about the pros and cons of unionization that they would in a contested Board election, particularly if an employer has pledged neutrality during the card solicitation process. Employees uninterested in, or opposed to, union representation may not even understand the consequences of voluntary recognition until after it has been extended. In circumstances where recognition is preceded by a card-check agreement that provides for union access to the employer’s facility, employees may even reasonably conclude they have no real choice but to accede to representation by that union. Third, like a political election, a Board election presents a clear picture of employee voter preference at a single moment. On the other hand, card signings take place over a protracted period of time. In the present Metaldyne cases, for instance, the Union took over a year to collect the cards supporting its claim of majority support. During such an extended period, employees can and do change their minds about union representation.”) (internal quotation marks and citations omitted).
[18] Id.
[19] The statute authorizes the locality to include in the unit “any other public employees deemed appropriate by the governing body,” but the locality’s authority to add job classifications appears to be a one-way street. The locality has the power to alter the unit only in the context of adopting or not adopting “an ordinance or resolution to provide for collective bargaining . . .” which invites organized labor to argue that the locality’s authority to alter the union’s preferred unit is contingent upon the locality’s willingness to bargain collectively. § 40.1-57.2.C. Notably, the statute does not provide authority to the locality to prohibitcollective bargaining “for any other public employees deemed appropriate by the governing body.” Id.
[20] The Developing Labor Law 11-1–11-16 (John E. Higgins, Jr., ed., 7th ed. 2017) (1971).
[21] § 40.1-57.2.C; see also, § 40.1-57.2.A. (requiring reasonable public notice and opportunity for labor organizations to intervene in process for designating exclusive representative of bargaining unit).
[22] § 40.1-57.2.A.
[23] The General Assembly also amended Virginia Code § 40.1-55 to provide that that section’s provision for termination of the employment of employees of the Commonwealth or of any county, city, town, or other political subdivision thereof who strikes “shall apply to any employee of any county, city, or town or local school board without regard to any local ordinance or resolution adopted pursuant to § 40.1–57.2 by such county, city, or town or school board that authorizes its employees to engage in collective bargaining.”
Timothy M. McConville is management-side labor relations attorney and President of Praemia Law, PLLC. He also serves as President and Chairman of the National Institute for Labor Relations Research. This article is for general informational purposes only and should not be relied upon or regarded as legal advice. Mr. McConville is available at 703-399-3603, ext. 1, and Timothy.McConville@praemialaw.com.
