4 basic errors in Virginia collective bargaining bill demand attention

Virginia policymakers are facing rushed and unclear language on a contentious collective bargaining bill.

For all the political jibes about not wanting to see how the sausage is made, voters generally rely on the legislative process to get certain things right. People might not like a particular bill, but they usually expect that it does what the policymakers who introduced it set out to do.

Sometimes, however, that process goes awry. And nowhere is this more obvious – or more troubling – than in competing proposals on collective bargaining now being sorted out by the Virginia General Assembly.

The House’s approach, which would force collective bargaining on both state and local government and could yield $4 billion in tax increases, was met with stiff resistance in the Senate. Instead, the Senate adopted what some claim to be a narrower bill. Unfortunately, the language the Senate adopted raises many questions. It may, among other things:

• Inadvertently grant teachers the right to strike
• Allow an “almost anything goes” bargaining regime for local governments
• Inadvertently allow sheriffs, clerks of court and other elected constitutional officers the right to unionize
• Leave unanswered the question of who gets to decide whether school district employees can collectively bargain – meaning it could be decided later in court

So how did the General Assembly get to this point?

How the process has worked so far

Members of both the House and Senate introduced legislation this year inserting government worker labor unions to contract negotiations between public employees and governments, a practice known as collective bargaining.

Each chamber had a different preferred approach, so when the House bill got to the Senate, the Senate amended it to reflect its preferred language – and the House did the same to the Senate bill. The Senate refused to accept the House’s amendments to their bill, and the House insisted on them, sending the bill to what is known as a committee of conference where a few legislators, known as conferees, will hash out a compromise, to be sent to both chambers for an up-or-down vote.

This may soon happen with the House bill as well, but it’s not strictly necessary; one bill in conference will do.

Senate Democrats have made it clear that they don’t have the votes for the House’s much more radical version, so presumably anything that emerges from conference will be closer to the Senate’s approach, which on its face is more conservative but could still open up a Pandora’s box for cities, counties, and school boards.

In short, the Senate’s one-page bill is an unintentional minefield.

4 basic problems that demand attention

The four basic errors in the Senate bill are as follows:

1. There are no guardrails for bargaining. The Senate allows counties, cities, towns,, and local school boards to give unions the ability to come between them and their employees. However, besides limiting strikes for some employees, with potentially flawed language as noted below, it does not set any limits on bargaining.

While other parts of Virginia law protect employees’ right to a secret ballot in union elections (which is destroyed in the House bill), the sky is the limit on what these localities can bind themselves into allowing unions to bargain over, and how far they can push taxpayers. Even union-heavy states such as New York put limits on what unions can negotiate over.

2. It might give teachers the authority to strike. School employee strikes have recently shuttered schools, sometimes for weeks at a time, in other states, including two years in a row in neighboring West Virginia. The Senate intended to clarify that, even with collective bargaining, public employees (including school employees) could not But a drafting error introduces considerable ambiguity.

The preexisting prohibition on collective bargaining is carved out to exempt a long (but not exhaustive) list of public employees, including teachers – but the existing ban on public employee strikes is only clarified to establish that a shorter list, omitting school employees, still may not strike.

Omitting teachers from the list could give rise to an argument that the legislature intended to grant them that authority, one they don’t have now. Further, even if teachers are subsequently included, there is no guarantee that they will not strike illegally as they have done in other states. Giving teacher unions more power and influence, as both bills do, could embolden them to increase walk-outs, legal or not.

3. It doesn’t specify who gets to decide whether school employees can collectively bargain. Under the Senate’s approach, local governments decide whether to allow collective bargaining. It isn’t forced on them by the state. This may be relatively cold comfort if political pressures force their hand, but it is, at least, some level of limitation. That said, the Senate’s language doesn’t make clear who decides this on behalf of school divisions. School divisions are not technically local governments, but for purposes of this provision, they are deemed to be local governments, included in the definition of “cities, counties, and towns.” The proposed language says that cities, counties and towns may adopt ordinances on whether to authorize collective bargaining, but unlike those jurisdictions, school boards don’t adopt ordinances.

It is unclear whether school boards are supposed to make this decision on behalf of their school districts – injecting unionization debates into local school board races – or whether the local governments in which those districts are based, which are the entities with the authority to promulgate ordinances, make it on their behalf.

4. It might accidentally allow sheriffs and others to unionize. The Senate intended to exclude elected constitutional officers (like sheriffs, clerks of court, and commissioners of the revenue) and their employees from collective bargaining, but they may have inadvertently done the opposite. An existing statute prohibiting collective bargaining is exempted to carve out most local government employees, followed by the proviso that “[t]he provisions of this section shall not apply to any officer elected pursuant to Article VII, Section 4 of the Constitution of Virginia or to any employee of such officer.”

The Senate intended to exclude these elected officers and their employees from the new collective bargaining carveout, but the language actually exempts them from the applicability of the entire code section – the section that prohibits collective bargaining in the first place.

It’s increasingly obvious that the legislature rushed the collective bargaining bills, with little consideration and still less foresight.