Virginia’s new collective bargaining law is forcing local government officials to deal with a controversial issue fraught with potential errors and legal risks.
If the 2021 election showed anything, it was that Virginia voters felt the Commonwealth was going in the wrong direction. The sweep of Republicans for governor, lieutenant governor, attorney general and the House of Delegates sent a clear message: Voters wanted change.
Local governments should take heed, especially on controversial issues such as public sector collective bargaining. Elected officials should carefully consider not just voter sentiment, but what new executive authority means for interpretation and implementation of recent laws.
One law, passed in 2020 by a Democratic governor, House and Senate, was a radical change to decades-old precedent. The new law gave local elected officials the ability to pass ordinances allowing government unions to have a monopoly and represent all public employees (even those that do not want representation) and to bargain on almost any issue. However, now there may be stricter scrutiny on the interplay between these ordinance and state laws, not to mention the U.S. Constitution.
Outgoing Virginia Attorney General Mark Herring celebrated the law when it went into effect in May 2021, saying he was “proud to have worked alongside Delegate Guzman and other labor advocates to craft this important legislation and ensure its passage.” But incoming Attorney General Jason Miyares voted against the bill and may not give unions such wide latitude with potential conflicts to state law and employee rights.
For example, the city of Alexandria narrowly avoided violating the state’s Secret Ballot Protection Act by allowing a union to organize via an open petition process, but at the last minute city officials realized their error and amended the city ordinance.
Unfortunately, the ordinance has several other troubling provisions that may not stand legal scrutiny. For one, the city and the few other jurisdictions have collective bargaining provisions that permit unions to take money out of public employee’s paychecks and show they want to be members of the union though “voice authorizations,” rather than giving employees the protection of a secret ballot.
These provisions are similar to other ordinances proposed in a number of other localities and have already been enacted in a few jurisdictions. They also include giving unions the ability to limit when public employees can leave the union and stop paying.
Many of these provisions may violate the First Amendment rights of public employees and their right to a private ballot.
The Supreme Court in the 2018 case Janus v. AFSCME held that employees have a First Amendment right to choose to pay dues or not and to protect this right, money can only be deducted from their wages after “clear and compelling evidence of “affirmative consent.”
Several attorneys general have said that allowing unions to take money from public employees and limit when they can exercise their right to leave a union is a violation of the employee’s First Amendment rights. Attorney General-elect Miyares may be more willing to agree with his colleagues across the county and protect the constitutional rights of Virginia’s public employees than his predecessor, who was proud to work alongside the government union advocates who may violate those rights in the future.
These are just a few examples of the legal landmines present for local governments passing government union collective bargaining creating monopoly union contracts, and demonstrates the process shouldn’t be rushed.
Unfortunately, that is exactly what the language of the state legislation forces local officials to do.
The law rushes the process by requiring governing bodies to take a vote to adopt or not adopt a collective bargaining ordinance within 120 days after getting a petition from public employees.
If government unions present a petition to local elected officials, they have a few short months to either vote it down or work on an entire new section of law. It could also come at a time when many staff are working on other things (such as dealing with the COVID-19 pandemic) or out of the office.
For instance, Prince William County is being forced to vote on such an ordinance in early January. This means that if the Prince William Board of Supervisors wants to enact it, county staff will need expedite the work, especially dealing with time off over the holidays. This could lead to long-term mistakes or illegal provisions accidently making their way into the ordinance.
Other than the political and legal pitfalls, there also have been examples of vague language that harms public employees. The recently passed Fairfax ordinance creates a Hotel California situation by requiring only a majority of votes from public employees to form a union but a majority of all employees to remove one.
This means that in a union with 100 employees, if 30 vote for the union and 20 vote against it, the union would represent all the employees. However, if that same vote was to remove the union, it would fail. Employees wanting to remove the union would need 51 yes votes. This provision could have been intentional, or it could have been the result of rushed, poor drafting.
Finally, even supporters of allowing government unions to bargain have noted unions are not effectively communicating with public employees. Phyllis J. Randall, Loudoun County Board of Supervisors chair and supporter of public sector bargaining, remarked that unions such as the Service Employees International Union have not been doing a good job communicating with their potential members.
With the changing political winds in Virginia, the potential for legal missteps, an incoming attorney general who may do more to protect public employees, and even the potential for drafting mistakes, localities presented with a 120-day clock on drafting a massive ordinance creating an entire new section of code are put in a difficult position.
The good news? They can always say no.
A version of this commentary originally appeared in the online blog VirginiaWorks on November 16, 2021. F. Vincent Vernuccio is a Visiting Fellow with the Thomas Jefferson Institute for Public Policy and a senior fellow at Virginia Works.
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