Lilias M. Gordon

Lilias M. Gordon
Associate

Thomas M. Winn III

Thomas M. Winn III
Principal

Public school teachers, firefighters, police officers, and most other local government employees will gain new rights next year. In May 2021, Virginia will permit local governing bodies to engage in collective bargaining with its employees. Virginia House Bill 582 (“HB 582”) was approved April 22, 2020, but Governor Northam postponed the date on which it will become effective until next May due to concerns over COVID-19.

In drafting HB 582, the legislature declined to create a statewide rule for how public employees must engage in collective bargaining. Instead, HB 582 only empowers local governing bodies to write rules of their own.

For this reason, Virginia local governments will have a significant amount of work over the next year choosing and writing collective bargaining policies. The flexibility of HB 582 will benefit a proactive-governing body that wishes to create labor-management policies that best suit its needs and resources.

What HB 582 Will Accomplish

Before HB 582, Virginia Code said no state, county, or municipality has the authority to recognize or collectively bargain with labor unions of any public employees.

Functionally, the only change made by HB 582 is that most public employees in Virginia are no longer explicitly banned from engaging in collective bargaining. It’s still up to the discretion of local government entities to decide whether to bargain with employees and if so, determine what this process will look like.

Now a local governing body has three options:

  1. It may pass an ordinance or resolution authorizing collective bargaining with its employees.
  2. For any governing body that has not adopted such an ordinance or resolution, employees may initiate this process by forming a unit they consider appropriate and requesting collective bargaining. The governing body then has 120 days to vote on whether to adopt an ordinance or resolution authorizing collective bargaining.
  3. Governing bodies have a third option of adopting no ordinance or resolution. HB 582 leaves the decision of whether to engage in collective bargaining entirely up to local governing bodies.

What HB 582 Will Not Accomplish

Employees Still Not Covered

Only employees of Virginia counties, cities, towns, or local school boards are covered by HB 582. State-level employees and constitutional officers remain unable to engage in collective bargaining. This includes City Treasurers, Sheriffs, Commonwealth Attorneys, Court Clerks, and Commissioners of Revenue and employees of such officers.

Employees of the federal government and most private companies already have the right to engage in collective bargaining. Therefore, going forward, state-level employees in Virginia and constitutional officers will be two of the only groups without this ability.

Actions Still Not Covered

This bill will not change the Virginia ban on public employees engaging in strikes. Currently, Virginia law states any public employee will be fired and ineligible for rehire in all Virginia government jobs for one year if he or she organizes two or more other employees to go on strike. This law will supersede any local ordinance or resolution passed by local government or school board that authorizes its employees to engage in collective bargaining.

A State Governing Board Still Not Created

The original version of HB 582 would have created a Virginia Public Employee Relations Board, which would be responsible for adopting regulations and overseeing bargaining under this Act. Most states have a labor relations board. For example, the Pennsylvania Labor Relations Board has been regulating public sector employees in the state since 1970. In the absence of such an organization, Virginia cities and towns will play the role of both a labor board and an employer.

Guidance for Drafting Ordinances

The good news is Virginia’s governing bodies won’t have to reinvent the wheel when it comes to adopting collective bargaining ordinances or resolutions. Arizona, Arkansas, Colorado, Louisiana, and Utah have statutes similar to Virginia’s new rule, in that public-sector collective bargaining is permitted but there is no statewide statute clarifying this right. Local governments in Virginia can look to similar counties, towns, and cities in these states to find examples of the ordinances that have been passed.

Governing bodies should consider several factors when adopting a policy:

  1. HB 582 requires that if governing bodies choose to pass ordinances or resolutions, procedures for the certification and decertification of exclusive bargaining representatives must be included.
  2. Because HB 582 does not specify topics over which there may be collective bargaining, this decision is left to governing bodies.
  3. Governing bodies should select dispute resolution methods if conflict with new unions arises. Options include arbitration, mediation, or assistance from independent fact-finders.
  4. The budget must be considered. HB 582 states no ordinance or resolution adopted by a governing body can include provisions that restrict the governing body’s authority to establish the budget or appropriate funds.

The Woods Rogers Labor & Employment team has extensive experience concerning labor-management relations, including organizing campaigns, union decertification, collective bargaining, grievances and arbitrations, and litigation with Unions.  We will continue to monitor developments on public sector collective bargaining in Virginia and HB 582.


If you have questions about collective bargaining for public employees:
Contact Tom Winn at winn@woodsrogers.com
Contact Lilias Gordon at lgordon@woodsrogers.com