Considering Public Sector Collective Bargaining? Here’s How to Protect Taxpayers and Workplace Freedom

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Twenty-eight years after Governor Doug Wilder signed it into law, the Virginia General Assembly lifted the ban on public sector collective bargaining. As of May 1st, localities in Virginia could give government unions a monopoly to represent all employees at a particular worksite.

However, the law passed in Richmond is unique from other states as it sets virtually no guidelines on what government unions can bargain over and how they can be formed. Thankfully, it also does not mandate public sector collective bargaining, allowing localities to keep the status quo that the Commonwealth has had for decades.

First and foremost, it should be pointed out that localities can reject public sector collective bargaining. There is good reason to do so, as simply administering the process is expensive. In fact, localities that are considering allowing bargaining are estimating hundreds of thousands or even seven figures for ongoing costs for negotiations and compliance. This spending will not go for better wages or benefits for current public employees or better services for citizens —it is simply to hire more employees to administer the infrastructure of bargaining.

The costs alone could be a large reason that, while the state law allows public employees to petition their local elected officials to vote on allowing bargaining, those representatives will vote no and keep the process that has worked in the Commonwealth for generations.

However, there may be some instances where a locality will allow public sector collective bargaining. For this reason the Thomas Jefferson Institute recently published “Recommendations and models for local collective bargaining in Virginia.”

While voting “no” or not voting at all if not required is the best option for Virginia localities, this “toolkit” outlines options for forming unions, protections for public employees, complying with state laws, and what topics a locality should bargain over (or not bargain over) if it must vote yes.

These include complying with Virginia’s secret ballot protection law, ensuring public employee votes to form a union are done securely and employee privacy is protected. Because unions will have a monopoly to represent all employees (even those who do not wish to join the union or be represented by it), the union should need a majority of all workers (not just those voting) to vote yes before they are given the privilege of collective bargaining.

Future employees should also not be locked into today’s decisions in perpetuity.  Unlike some other states where unions were voted in generations ago and simply remained, public employee should have the right to periodically vote on whether to keep the union at their workplace, vote it out, or select a different union.

Ordinances should also be specific about complying with the spirit and letter of Virginia’s transparency laws, ensuring that collective bargaining negotiations are conducted in the open, similar to other public meetings affecting Virginian taxpayers and citizens.

The Supreme Court has said that everything government unions do is political and public employees have a First Amendment right to choose to pay union fees or not. Public employees should be informed of these rights before any money is taken from them. Further to prevent misunderstanding or fraud, any ordinance should include language similar to a recent Indiana bill requiring public employers to confirm with the employees that they wish to pay dues before money is deducted from their paychecks. Alternatively, the locality could follow the lead of states such as Michigan which prohibit union dues being deducted from some public employees’ paychecks.

While public employees who work for the union may need to do some union business during the workday, they should not receive their taxpayer funded salaries during this time. Public employees should be allowed to use vacation time or take unpaid time off while doing union business but paying these employees to do union work on the taxpayer’s dime should be forbidden. Similarly, unions should pay fair market value for office space in public buildings or the use of government equipment.

The people’s local elected officials must have the final say over both budgetary (required by state law) and policy issues. The employer’s negotiating team and the union may agree to a tentative contract but it should not go into effect until the local elected body approves it. Similarly, arbitration, where an unelected arbitrator or arbitration panel writes the final contract, should be avoided.

Local ordinances allowing for public sector collective bargaining can also specify what unions can and cannot bargain over. The best model is Wisconsin which allows government union to bargain over wages only but limits that to inflation without a voter referendum.

If the locality must for whatever reason allow a broader scope of bargaining there are several things that should be expressly prohibited. These include:

Seniority pay systems: the ordinance should ensure that good employees can receive raises for how hard they work.  Local governments should not be constrained from compensating employees based on skill, effort and competence rather than merely “time served”;

General staffing and personnel decision: determination about who can be hired and staffing levels should be left to the employer;

Layoffs and last in first out: ordinances should prevent a collective bargaining agreement from dictating newer employees be laid off before more senior employees regardless of performance;

Ancillary services: localities should be free to do competitive bidding and should not be locked into buying services such as insurance from a specific provider because of a collective bargaining agreement;

Other issues that should be off the bargaining table include the school calendar and scheduling; discipline and grievances; pensions; performance evaluations; and school curriculum.

Many of the above issues are already prescribed by state law, especially for education employees and may not be bargained over anyway. As with any large-scale contract, local counsel should be consulted before allowing any specific subject in a collective bargaining agreement.

Allowing public sector collective bargaining will be a very difficult, time consuming, and expensive process. The easiest and most cost-effective route that protects public employees and stops a third party from coming between them and their employer is for localities to keep the status quo and vote no. If this is not possible local elected officials should first attempt to follow Wisconsin’s lead. If they must allow larger bargaining the several subjects outlined in the toolkit should be considered to be specifically taken off the table.

F. Vincent Vernuccio

About F. Vincent Vernuccio

F. Vincent Vernuccio is a Senior Fellow with Virginia Works and a Visiting Fellow at the Thomas Jefferson Institute for Public Policy.
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