Collective bargaining bill on Northam’s desk would be a nightmare for Virginia local governments

The bill ignores common standards for government unions’ size, composition and recognition, and may take away the secret ballot from public employees.

A handful of government employees could bog down local governments across the state under hastily revised collective bargaining legislation in Richmond, which now awaits action by Gov. Ralph Northam.

If the bill is signed into law, small groups of public employees could overwhelm local governments with requests to allow them to bargain. The agreed-to legislation places no limits on the size (how small) of potential unions and the frequency which they can ask local cities, counties, and possibly even school boards to recognize them.

Virginia’s House and Senate adopted competing approaches to public sector collective bargaining earlier this year, resolving their differences in what is known as a committee of conference. The House wanted to permit unions to bargain on behalf of public sector employees at both the state and local level. The Senate had insisted that collective bargaining should only apply at the local level, and then only if local governments voted to allow it.

The House and Senate then came to a compromise in committee – but that compromise bill comes with brand-new problems for local governments.

Specifically, instead of just allowing local governments to decide whether to permit collective bargaining, it gives unions the power to decide how big the union is (any group of employees, no matter how small, could say they are a union) and who the union would cover. It then forces the localities to vote on whether to recognize those employees as a union. The bill also contains questionable language that could overrule other laws that protect the secret ballot for workers in unionization elections.

There are at least three serious flaws with the compromise: it allows an almost limitless number of local bargaining units, it could force local governments to confront the unionization issue over and over again, and it denies public sector employees their right to a secret ballot.

Those flaws present serious challenges for local governments across the state:

1. Just about anyone can be a bargaining unit. Under the new language, if a local government doesn’t authorize collective bargaining, they can be forced to vote on the issue upon receiving certification that the majority of employees in a potential bargaining unit petition for union representation. The way the legislation is written, any group of employees, no matter how small, could say they are a union. Unions could slice and dice the number of employees to always make sure they have a majority; they could also create a multitude of hyper-small units forcing localities to vote over and over again, crowding out other legislation and important business.

Specifically, the compromise legislation states (emphasis added):

“For any governing body of a county, city, or town that has not adopted an ordinance or resolution providing for collective bargaining, such governing body shall, within 120 days of receiving certification from a majority of public employees in a unit considered by such employees to be appropriate for the purposes of collective bargaining, 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.”

Think about what this means. If the majority of teachers opposed collective bargaining, those favoring it could try a smaller unit like, say, high school teachers. Or even a smaller one, like biology teachers. Indeed, there’s no limiting feature at all: any group of public employees could deem themselves an appropriate unit for purposes of collective bargaining and require their local government to take a vote on it. And if granted permission, nothing would stop each of these micro-units from being represented by their own union, separate from bargaining carried out on behalf of other government employees.

While most unions, especially those in the private sector, are formed under a “community of interest standard,” where several factors such as similar hours, supervision, location, and working conditions are considered to determine what employees are in a bargaining unit and thus who will be able to vote, the Virginia Compromise bills throws that standard out the window, leaving no standard at all except what a union wishes.

2. A few employees could force local governments to address collective bargaining over and over again. If a local governing body votes against permitting collective bargaining, the employees that brought up the issue – or another set of employees – could simply bring it up again. And again. They could bog down a city council, a board of supervisors, or a school board with an endless run of votes on collective bargaining, since the legislation requires that a vote be held in response to each petition.

3. Employees’ right to a secret ballot would be imperiled. Virginia law enshrines the right to vote by secret ballot in labor elections, as opposed to the so-called “card check” model where union organizers can pressure workers to sign cards in a public election. The new language in the collective bargaining bills is inconsistent with this important employee protection, as it allows union organizers to collect public support from members of a potential bargaining unit to take to the local governing body, which must then vote on whether to authorize collective bargaining.

Taking away the secret ballot, allowing a small number of employees to overwhelm local governing bodies, and throwing away the standard for union size and composition.

Does this sound like a compromise?

The conference reports now go to Northam, who must decide whether to sign, amend, or veto them.

There will be much for him to consider.