New public-sector unions in Virginia are acting contrary to state law. New regulations are needed to bring them into compliance.
New public-sector unions in Virginia are acting contrary to state law. New regulations are needed to bring them into compliance.
V irginia does not allow collective bargaining for state government employees, and until 2020, it didn’t allow it for local government employees, either. That changed when the Democratic-controlled legislature passed and then-Governor Ralph Northam (D.) signed a law allowing local governments to develop their own collective bargaining regimes. Seventeen local government employers have since authorized collective bargaining for public employees, including nine school districts.
The 2020 law did not prescribe rules for the new public-sector unions, which are currently operating in a gray zone of state law. Existing Virginia regulations on things such as representation elections and union dues apply to private-sector unions, but regulations for public-sector ones in many cases do not exist yet.
Now, under Governor Glenn Youngkin (R.), the Virginia Department of Labor and Industry has proposed regulations to bring newly empowered public-sector unions in line with existing laws that protect employees from union abuse. The department must enact them to clarify its labor laws and prevent unions from taking advantage of the current regulatory vagueness.
For example, Virginia law says, “In any procedure providing for the designation, selection, or authorization of a labor organization to represent employees, the right of an individual employee to vote by secret ballot in such a procedure is a fundamental right that shall be guaranteed from infringement.” It makes no distinction between public- and private-sector unions because when the law was written, there were no public-sector unions with collective bargaining rights.
Now there are, and some of them do not guarantee secret-ballot elections. Several of them are vague about how elections are run, and Richmond Public Schools authorized card check, the process by which union representatives can coerce signatures from employees and then present them as votes for unionization.
That is clearly contrary to the state law guaranteeing the secret ballot as a fundamental right, and it is up to the Department of Labor and Industry to enforce the law. That’s why the proposed regulations make clear that the law applies to local government unions as well.
The proposed regulations also apply the same rules governing the collection of union dues already in practice for Virginia private-sector unions to the newly empowered public-sector unions. All 17 of them in existence so far have enacted automatic dues deduction from employees’ paychecks. That effectively outsources dues collection from the union to the taxpayer, as government payroll systems funnel money to unions directly.
More important than the administrative issue is the constitutional one. Automatic dues deduction violates the Supreme Court’s Janus v. AFSCME decision, which says that unions cannot take money from public employees “unless the employee affirmatively consents to pay.” That is a separate question from recognizing a union as a bargaining agent, since it is the bargaining agent for all employees in the workplace, even the ones who may have voted against the union or have chosen not to join.
Automatically deducting dues from all employees’ paychecks while allowing them to opt out later gets this constitutional question exactly backward. Coerced support for unions cannot be the default setting. Employees who wish to contribute must opt in voluntarily to comply with the Supreme Court’s decision.
The proposed regulations ensure such compliance by requiring written and signed authorization from the employee before dues may be deducted. This is already the law for Virginia unions, but as with secret-ballot elections, it has never been applied to public-sector unions. The regulations simply clarify that it does apply.
The final provision of Virginia law that the proposed regulations address is the commonwealth’s prohibition on unions’ soliciting membership during the workday. This has the effect of prohibiting “captive audience” meetings at which union organizers pressure employees to join during working hours. This practice is especially problematic in the public sector because the working hours being used for union activities are being paid for by taxpayers.
The ideal outcome for Virginia would be to repeal the Democrats’ 2020 law and return Virginia to being one of the few states that outright prohibit collective bargaining in the public sector. North and South Carolina have for decades, and Utah joined them with a new law signed by Governor Spencer Cox (R.) this year. But with Democrats currently in control of the Virginia General Assembly, a repeal effort would go nowhere.
In the meantime, the proposed regulations are needed to make sure local government unions are following the law. Virginia is a right-to-work state with many strong protections for employees in unionized workplaces. Public employees deserve those protections just as much as private employees do.