Virginia Localities Face Push to Unionize Public Employees
The Commonwealth of Virginia has gone “all-in” to empower organized labor by authorizing cities, counties, towns, and other local government employers to recognize and bargain with union officials over public employees’ employment and service. Revisions to Virginia Code Section 40.1-57.2 became effective on May 1, 2021, reversing decades-old state law that prohibited unionization of local government employees. 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 act on labor-relations decisions without a source of new dollars (which the General Assembly and Governor Ralph Northam did not provide).
Local governing bodies in Virginia are grappling with how to comply with the state mandate and, at the same time, serve the interests of taxpayers, consumers of government services, and individual employees. Decision-makers would be wise to develop labor-relations strategies sooner rather than later. Some may consider but resolve not to adopt collective bargaining. Some may enact comprehensive procedures for certification and decertification of unions, bargaining, resolution of disputes, and protections for individual employees, among other provisions. Others may instead wait and see whether a specific union will attempt to unionize workers and then respond. In the meantime, policy-makers may study available legislative options.
Local government policy-makers intent on serving the interests of the public and public employees, as opposed to union officials, may consider various strategies for staying union-free. The Clarke County Board of Supervisors, for example, adopted a broad resolution prohibiting the County Administrator and employees of the County from recognizing or bargaining with union officials.[i] Similarly, in response to a union’s claim for certification of a petitioned-for unit of firefighters and emergency medical personnel, the Portsmouth City Council adopted a comprehensive resolution providing that the City will not recognize any labor union as a bargaining agent of any public officers or employees.[ii]
Other local governing bodies skeptical of the state policy facilitating unionization of public employees could proactively enact ordinances or adopt resolutions that are as restrictive as appropriate from a labor-relations perspective but that also give effect to policy preferences that favor taxpayers and public employees and contravene union officials’ interests. For example, a local governing body could adopt a bargaining scheme that includes rigorous limitations on the subjects of bargaining. Ordinances could also include enhanced protections for individual public employees against union overreach as a means of limiting any opening union officials may obtain in any ordinance. Some combination of these approaches is also conceivable. The appropriateness of any strategy will depend on the circumstances present in the relevant locality at the relevant time.
Virginia Law Imposes the Unionization Decision on Localities.
For decades, Virginia Code Section 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 authorizes 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 their employment or service.[iii]
On the surface, the statute frames the bargaining decision as an option for localities. If a local governing body proactively adopts an ordinance or resolution under the statute, 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.[iv]
This option could be considered a “front door” of sorts for union organizers to enter the public-sector workplace and to compel recognition.
Local Governing Bodies Should Develop Labor-Relations Strategies.
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 local governing body does not affirmatively authorize recognition of and bargaining with unions, it will leave open another option for union organizers, a “back door” of sorts to force the local government to consider recognizing the union and engaging in bargaining.[v] Specifically, if a union demanding representation in a locality that has not adopted a bargaining ordinance or resolution claims “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 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.”[vi] The governing body’s mandated vote is required within 120 days of receiving notification of the claim of majority status.[vii] As a result, a local governing body that has not adopted a bargaining ordinance under Section 40.1-57.2.A. may be required to entertain attempts, possibly even repeated attempts, to unionize public employees.
Local governing bodies would be wise to develop labor-relations strategies sooner rather than later. Some, like the Clarke County Board of Supervisors, may adopt a broad resolution prohibiting the county administrator and employees of the county from recognizing or bargaining with union officials.[viii] Some may believe that proactively enacting a comprehensive bargaining scheme will afford the local governing body a greater ability to protect public employees, taxpayers, and the localities themselves. Fairfax County, Arlington County, and the City of Alexandria have adopted ordinances that provide for certification, decertification, bargaining, and dispute resolution procedures, among other elements.[ix] Others may instead wait and see whether a specific union will attempt to enter through the “back door” and then respond.
Local Governing Bodies Have Options to Protect Themselves, Workers, and Citizens.
Local government decision-makers intent on serving the interests of the public and public employees, as opposed to union officials, may consider various strategies for staying union-free. The City of Portsmouth, for example, may have anticipated the possibility of repeated unionization attempts and acted to foreclose the possibility of repeated attempts to unionize City employees. As of May 1, 2021, the effective date of the statute, the City had not affirmatively authorized bargaining with unions through an ordinance or resolution. As a result, under the state Code, the “back door” remained open, and International Association of Fire Fighters Local 539 attempted to use it to unionize City fire houses. On May 1, 2021, the union submitted a certification and claimed to represent a majority of fire fighters and emergency medical services personnel.
The City responded by accepting the opportunity to consider the union’s certification claim. City staff reported to the City Council that the preliminary, estimated costs associated with administration of collective bargaining would include five to six additional staff positions and compensation for contractual services including legal advisors.[x] The report projected the costs would total in the “range of $2 Million annually,” excluding the costs to taxpayers of increased salaries and benefits that could result from a collective bargaining agreement.[xi] Within 120 days of the union’s certification claim, on August 10, 2021, the City Council adopted a resolution that rejected the IAFF Local 539’s claim as to fire fighters and emergency medical personnel and went further to declare that the City will not recognize or bargain with “any labor union or any employee association as a bargaining agent of any public officers or employees . . . .”[xii]
Other local governing bodies skeptical of the state policy facilitating unionization of public employees could proactively enact ordinances or adopt resolutions that are as restrictive as appropriate from a labor-relations perspective and that also give effect to policy preferences that are decidedly pro-taxpayer, pro-employee, and, conversely, anti-union. For example, a local governing body could adopt a bargaining scheme that includes rigorous safeguards to protect employees from manipulation during the organizing process and from union activists’ violations of individuals’ rights.
Other protections could include re-certification requirements to prevent bargaining representatives from perpetuating their monopoly status without any consent from employees hired after an initial certification; informed-consent requirements during card signing and other means of validating employees’ support of or opposition to unionization; and requirements for unconditional revocation of dues-deduction authorizations. Some localities may find a need for strict limitations on the subjects of bargaining to prevent intrusion into matters relating to delivery of public services and unrelated to terms of employment. Requiring super-majorities or even unanimous support as means of protecting individual employee rights and constituents’ interests may also be considered. Similarly, some localities may limit the frequency of certification claims. Some combination of these approaches is also conceivable. The appropriateness of any strategy will depend on the circumstances.
Careful Examination of Labor Law Issues Exposes Broad Problems.
In any event, to avoid losing ground to union officials, local government policy-makers will have to catch up to veteran public-sector union organizers who have been engaged in public-sector bargaining for many decades. Governing bodies may have to answer substantial policy questions left open by the brief state statute. Many issues relate to the scope of bargaining, including what can be negotiated and on whose behalf. The statute gives union officials initial, unilateral control over the scope of the bargaining unit sought in “back-door” demands for recognition under Section 40.1-57.2.C., including the power initially to specify the job classifications, departments, and locations that are included and excluded from the unit.[xiii] The City of Portsmouth responded to the union’s certification claim relating to fire fighters and emergency personnel by expanding the scope and broadly declaring that the City will not recognize or bargain with “any labor union or any employee association as a bargaining agent of any public officers or employees . . . .”[xiv]
The statute’s bargaining mandate has no meaningful limitations on the scope of subjects about which the locality may 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’s cession of government sovereignty to unelected union officials and facilitation of unions’ control over critical aspects of policing, fire protection, education, and public utility services is significant. The scope of bargaining authorized in Virginia Code Section 40.1-57.2 includes “any matter relating to [any public officers or employees] or their employment or service . . . .” The reference to “service,” as something distinct from “public officers or employees” and “their employment,” suggests authorization to provide for bargaining over the local services themselves. As a result, localities considering adopting a bargaining scheme will need to consider carefully the subjects about which they will bargain and, conversely, those which they will preserve for their own unilateral determination. Examining the details of these issues may persuade policy-makers to avoid altogether the possible hazards by deciding to stay union-free.
Union officials routinely demand to bargain about matters that are customarily vested within management’s rights, and the Virginia statute’s virtually unlimited 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. Other issues include whether bargaining will be limited to meeting and conferring without further obligation, how bargaining impasses are to be resolved, whether the local governing body will have ultimate authority to impose its terms after conferring with a union, and any process for the resolution of disputes under any collective bargaining agreement.[xv]
A wait-and-see approach may permit a governing body to put off difficult issues at a possible cost of ceding procedural initiative to union organizers. Delay carries a risk that the local governing body will lose some control over the process.[xvi] Whether taking the front-door approach or the back-door approach, or some other variation, local governing bodies’ decisions must be made so that public officials can do their best to confront the cascade of issues and to protect the citizens they are elected or hired to serve.
Timothy M. McConville is a 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.
[i] Clarke County, Va., Collective Bargaining Resolution 2021-09R (June 15, 2021) (located on p. 78 at https://www.clarkecounty.gov/home/showpublisheddocument/7769/637589133553188807). Section 40.1-57.2’s framework, which effectively requires that local governing bodies either adopt authorizations for unionization and bargaining or, alternatively, wait and see whether a specific union will attempt to enter through the back door, does not specifically provide for localities to respond other than as prescribed in the statute. Adoption of a resolution once, by which the governing body indefinitely establishes its intent to deprive local government officials of any authority to recognize a union and to bargain collectively, may provide various practical advantages to a local governing body, including in efforts to deny a toehold in the workplace to union organizers and to support defenses against any legal action by unions. At this early date, no case law exists on whether a local governing body that merely resolves not to bargain generally, as opposed to in response to a specific certification claim involving a specific unit of employees, is a “governing body of a county, city, or town that has not adopted an ordinance or resolution providing for bargaining” and is therefore still vulnerable to a union recognition demand via the “back door.” See § 40.1-57.2.C. (emphasis supplied).
[ii] Portsmouth, Va., Resolution Regarding Collective Bargaining of Public Employees and Officers, 21-248(a), (Aug. 10, 2021).
[iii] Va. Code § 40.1-57.2 (2021) (hereinafter referred to as the “Virginia law” or the “Virginia statute”).
[iv] § 40.1-57.2.A.
[v] § 40.1-57.2.C.
[vi] See § 40.1-57.2.C. (mandating local governing body vote within 120 days of union claim of majority status “[f]or any governing body of a county, city, or town that has not adopted an ordinance or resolution providing for collective bargaining”) (emphasis supplied).
[vii] Id.
[viii] Clarke County, Va., Collective Bargaining Resolution 2021-09R (June 15, 2021) (located on p. 78 at https://www.clarkecounty.gov/home/showpublisheddocument/7769/637589133553188807).
[ix] Fairfax County, Va., Collective Bargaining Ordinance, (Oct. 19, 2021); Arlington County, Va., Code § 6-30 (2021); Alexandria, Va., Code § 2-5-67 (2021).
[x] Portsmouth, Va., City Council Briefing, Local Public Employee Collective Bargaining (July 27, 2021) (https://www.portsmouthva.gov/DocumentCenter/View/10790/Final-Collective-Bargaining-7272021).
[xi] Id.
[xii] Portsmouth, Va., Resolution Regarding Collective Bargaining of Public Employees and Officers, 21-248(a), (Aug. 10, 2021) (emphasis supplied).
[xiii] Virginia Code Section 40.1-57.2 authorizes the local governing body to include in the unit “any other public employees deemed appropriate by the governing body,” but such authority to add job classifications appears to be a one-way street. The local government may have 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 may invite the argument that the authority to alter the union’s preferred unit is contingent upon the local governing body’s willingness to bargain collectively. See § 40.1-57.2.C (emphasis supplied). Notably, Section 40.1-57.2.C does not appear to authorize the local governing body specifically to prohibit collective bargaining “for any other public employees deemed appropriate by the governing body.” Id. Such authority may derive from other legal sources beyond the scope of this article.
[xiv] Portsmouth, Va., Resolution Regarding Collective Bargaining of Public Employees and Officers, 21-248(a), (Aug. 10, 2021) (emphasis supplied).
[xv] 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.” § 40.1-55.B.
[xvi] The information contained herein is provided for informational purposes only and should not be construed as legal advice on any subject matter. This letter is not intended to be a substitute for legal counsel. No one should act or refrain from acting on the basis of any content included herein but should instead seek appropriate legal advice on the particular facts and circumstances at issue from a properly licensed attorney.
