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New Virginia Public Sector Bargaining Law About To Take Effect

Posted: April 13, 2021

Local government employees in the Commonwealth of Virginia will soon become eligible to enjoy collective bargaining rights for the first time, come May 1, 2021. On that date, a law passed in 2020 will take effect. The law gives counties, cities and towns (including local school boards) the authority to enact ordinances that allow their police officers, fire fighters and emergency medical service personnel, public works employees, school teachers and other local government employees to form unions and engage in collective bargaining with their municipal employers. The Virginia law maintains the existing prohibition on public employee strikes, and it does not cover state government employees.

Unlike other states that have authorized collective bargaining for state and/or local public employees, the Virginia law does not mandate a particular set of rules governing labor relations. Instead, the law leaves it up to each local government to craft its own ordinance, should it choose to do so as the law does not compel local governments to pass such ordinances. The law also allows public employees to form a union which may then request bargaining, in which case the local government’s governing body must take a vote within 120 days on an ordinance or resolution providing for collective bargaining with that group of employees.

Virginia’s cities, counties and towns may soon find themselves under pressure from their employees and/or the public to enact public employee bargaining ordinances. In drafting their ordinances, local governments will face an array of decisions which could have long-lasting impacts on labor relations, budgets and operations. Those decisions will include the following:

Defining the Bargaining Unit(s)

  • Should the ordinance prospectively define the bargaining units (the employee group(s) covered by a labor contract) or should it allow employees to organize their own units subject to challenge by the employer and review by a neutral body/entity (akin to the process under the National Labor Relations Act for private sector employers)? If units are defined by ordinance, would it be by agency? Job functions? Or should there only be units for police, fire/EMS, and then everyone else? Should the ordinance allow for many small units (and thus many labor contracts) or only a few larger units?

Process for Union Representation

  • How will employees express their will on unionization? Through secret ballot elections? Or through less formal mechanisms like private elections or card check procedures? Who will administer these processes?

The Bargaining Process

  • What subjects will the union have the right (and the employer have an obligation) to bargain over? Wages and benefits only? So-called “non-economic” subjects as well? Shift schedules? Discipline and discharge? Work rules?
  • Should certain subjects be removed from the scope of bargaining? Should certain subjects be made uniform for all employees (e.g., health benefits)? Should the ordinance fix a particular time period for bargaining, so as to align with the budget approval process?

Impasse Resolution

  • If negotiations reach an impasse, what will be the process for breaking the logjam? Mediation? Non-binding fact finding? Legislative hearing and determination by the county/city council? Binding interest arbitration? And, if so, how “binding” can that be in light of state law that reserves budgetary authority to the governing body? 
  • On a more granular level, in making a recommendation/decision to resolve the impasse, should the mediator/fact finder/arbitrator be required to give priority to certain factors over others – e.g., to give more weight to the municipality’s financial condition than, say, the employees’ relative compensation compared to other jurisdictions? Should the ordinance define the comparable jurisdictions that must be looked to in assessing employee compensation levels? Or should that be left to the parties to litigate?

The way these questions are answered will likely have long-term effects on the labor relations, budgets, and delivery of services to the public for those local governments that adopt bargaining ordinances. The sooner Virginia’s local governments start thinking about these questions the better; the unions seeking to represent their employees are all but certain to arrive in town on May 1 armed with their own proposed ordinances – undoubtedly written for their own benefit. Fortunately, Virginia’s local governments do not need to start from scratch. Rather, they can find guidance in the bargaining laws of other states and municipalities, and from the experiences of legal and labor relations practitioners under those laws.

Should you have any questions regarding this new Virginia law, please do not hesitate to contact your Saul Ewing Arnstein & Lehr LLP attorney contact.