Thomas M. Winn III

Thomas M. Winn III
Principal

Guidance for Local Governments on Collective Bargaining with Public Employees

Local governments across Virginia soon will be able to authorize collective bargaining with public sector unions. House Bill 582 legalized public sector bargaining in 2020 and it becomes effective in May 2021.

A previous article summarized general information on this bill and its ramifications. This article answers six essential questions local government organizations frequently ask us concerning collective bargaining issues: how, who, what, where, when, and why.

HOW do local governments start collective bargaining?

Local governments start the process of collective bargaining by passing a resolution or ordinance. Bill 582 states no local government entity has the authority to engage in collective bargaining unless “such authority is provided for or permitted by a local ordinance or by a resolution.” Fortunately, local governments in other states have already written such ordinances and resolutions. These templates are extremely helpful.

For example, cities in Colorado have a wide range of ordinances and resolutions. Denver has three extremely detailed ordinances for police officers, firefighters, and deputy sheriffs, as well as a much shorter resolution for teachers. Unlike Denver, Adams County, Colorado has two resolutions that cover all its employees. Adams creates a two-step process: first, authorizing collective bargaining for all county employees, and second, developing a representation process and policy for collective bargaining subjects in a second resolution.

Several cities in Arizona have taken a different approach by adopting “meet and confer” ordinances. Under a meet and confer system, local governments are required only to meet with unions to discuss designated topics. If an agreement is reached, both sides will sign a memorandum of understanding. This system differs from collective bargaining in that reaching an agreement is not always required. Phoenix, Tucson, Avondale, and Chandler all provide good examples of meet and confer ordinances.

In passing Bill 582, the Virginia legislature declined to create a statewide board, which is common in other jurisdictions. Phoenix took the step of creating the Phoenix Employment Relations Board, which is in charge of administering the city’s meet and confer ordinance and resolving disputes. The Board has five members and their budget is made available online.

WHO can bargain with local governments?

Local governments can bargain with properly certified unions. Virginia counties, cities, towns, and local school boards can bargain with unions representing any of their employees, except for elected officials and constitutional officers. Examples of elected positions prohibited from collective bargaining include Treasurer, Sheriff, Commonwealth’s Attorney, Clerk of Court, or Commissioner of Revenue.

Certification refers to the process for establishing that enough employees agree to be represented by a particular union. Bill 582 requires a governing body to specify in their ordinance or resolution the procedures for certifying and decertifying employees’ bargaining representatives.

While Bill 582 does not specify exact steps to use, it does require governing bodies to include reasonable public notice and opportunity for other labor organizations to intervene in the process of designating an exclusive representative of a bargaining unit. For example, the meet and confer ordinance in Chandler, Arizona has a detailed election process that includes public notice and opportunity for intervention.

WHAT should be included in a resolution or ordinance?

As discussed above, local governments must include a process for certifying and decertifying unions in any new collective bargaining law. Local governments also may wish to include additional information like permitted bargaining topics and method of dispute resolution.

The National Labor Relations Act has mandatory, permissive, and illegal topics of bargaining. The Act requires private sector employers to bargain over wages, hours, and other conditions of employment including benefits, working conditions, scheduling, and seniority. An example of an illegal subject is discrimination on the basis of a protected class. Virginia governing bodies will have significant flexibility on this point.

Dispute resolution options include grievance and arbitration procedures, mediation, or assistance from independent fact-finders. For example, under binding arbitration, disputes between an employer and a working unit would be settled by a third-party neutral arbitrator. The employer would be bound by these decisions.

Bill 582 has a single requirement about what cannot be included in a new collective bargaining law. 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.

WHERE can bargaining take place—in a closed or open meeting?

Local governments must determine how best to engage in collective bargaining and still comply with the Virginia Freedom of Information Act (VFOIA). Under VFOIA, public entities are required to make meetings open to the public and produce any documents requested by a Virginia citizen, unless an exception applies. So far, there are no exceptions for collective bargaining, meaning negotiations and votes conceivably could be public. Other states have added exceptions to their FOIA statutes to account for collective bargaining. It is unclear whether the Virginia legislature will update VFOIA.

WHEN do local governments need to decide on authorizing bargaining?

There is no deadline for local governments to make a decision. The earliest a new collective bargaining law can be passed is May 1, 2021. But Bill 582 specifically says “[n]othing in this subsection shall require any governing body to adopt an ordinance or resolution authorizing collective bargaining.”

Making a decision could still be time-sensitive. If a local government is notified by its employees that they have selected a union and wish to engage in bargaining, the local government will have 120 days to vote on whether to pass a collective bargaining law.

WHY should local governments engage (or not) in collective bargaining?

Whether a local government may wish to entertain collective bargaining is an issue that will vary by locality. This may or may not be the right fit for every city, town, or county. On one hand, collective bargaining may boost employee morale for certain groups of employees. On the other hand, it can be extremely divisive, expensive, and interfere with operational flexibility.

If a local government decides to engage in collective bargaining, preparation is extremely important. An organization’s first go at collective bargaining sets the precedent for all future agreements. Once an issue has been conceded through collective bargaining, it can be terribly difficult for an employer to get it back. Therefore, thoughtful negotiations of a first agreement are essential, and localities should consider engaging an experienced labor negotiator to assist.

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