by J. Kennerly Davis

In the spring of 2020 — with Democrats controlling the Senate, the House of Delegates, and the Governor’s mansion – the General Assembly narrowly passed and Governor Northam signed HB-582, now set out in Section 40.1-57.2 of the Code of Virginia. That law, enacted during the widely disorienting onset of Covid, marked a dramatic change in Virginia labor law, and it represents gross legislative malfeasance that cries out for repeal.

Prior to the enactment of HB-582, public employee collective bargaining was prohibited by state law. This prohibition was consistent with long-established practice across the country.

The 2020 law significantly altered the landscape in Virginia. It repealed the state prohibition on public-sector collective bargaining and now allows localities – counties, cities, and towns – to formally recognize labor unions and other employee associations as bargaining agents and to enter into collective bargaining agreements with those agents.

If a local government does not adopt an ordinance recognizing a bargaining agent, employees of that government can form a unit, request collective bargaining, and force the local government to vote on recognition within 120 days.

Since the law took effect on May Day 2021, public sector unions and their supporters have pressured local governments across the commonwealth for recognition of bargaining agents. Several cities and counties, including Alexandria, Richmond, Arlington, Fairfax, Loudoun, and Prince William, have adopted ordinances or resolutions allowing public sector collective bargaining, and union activities in those localities are steadily advancing.

These developments raise serious issues for the residents in these localities and, indeed, for all Virginians. A labor union, by its nature and defining purpose, exists solely to protect and advance the interests of its members, interests that  typically conflict with the  interests of the employer. The union, for example, wants to maximize wages and benefits while the employer wants to minimize expenses.

In the private sector, the conflicting economic interests of the union and the corporate employer are balanced, at least imperfectly, through collective bargaining conducted at arm’s length between representatives of the union and management representatives of the corporate employer. In this setting, each separate group of representatives has a clearly defined responsibility to advocate wholeheartedly for the differing economic interests of its respective constituency, the union representing its members and management representing the corporation and, ultimately, the shareholder owners of the corporation.

This fundamental logic of arm’s-length collective bargaining in the private sector breaks down completely when the bargaining takes place in the public sector between representatives of government employees and representatives of the government itself. It breaks down because the public officials who represent the government have a fundamental disqualifying conflict of interest that makes it impossible for them to fulfill their responsibility to represent wholeheartedly the government and the taxpayers who support the government.

This disqualifying conflict of interest arises from the fact that public sector unions are active participants in politics and the electoral process. On a regular basis, unions decide whether or not to lend their potentially decisive political support to elected public officials, the very same elected officials with whom they negotiate collective bargaining agreements for their members.

Elected officials who know that the fate of their incumbency may depend on the good will of the union officials sitting across from them at the bargaining table cannot be expected to wholeheartedly defend the interests of taxpayers against the conflicting demands made by unions.

The results can be devastating for taxpayers. Fairfax County, for example, enjoyed a $240 million surplus in fiscal 2024. Now, after negotiating public employee collective bargaining agreements with increases to pay and benefits that greatly exceed tax revenue growth, Fairfax is facing a $300 million deficit.

Democrats in Virginia and elsewhere used to understand that unionization and collective bargaining cannot be extended from the private sector to the public sector without posing an insurmountable conflict of interest for public officials, and a serious threat to the interests of taxpayers and the effectiveness of representative government. Franklin Roosevelt, for one, was adamantly opposed to public sector collective bargaining.

In 1935, the National Labor Relations Act created collective bargaining rights for private sector employees. When he signed the law, President Roosevelt explained that “All Government employees should realize that the process of collective bargaining …cannot be transplanted into the public service…The very nature and purposes of government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with government employee organizations.”

If the members of management responsible for protecting the interests of a corporation and its shareholders during collective bargaining were found to be hopelessly conflicted because they were beholden to union officials for their jobs, then the shareholders of the corporation could rightfully demand that the source of the disabling conflict be eliminated.

So, too, it is with the public sector. FDR was right. Collective bargaining cannot be transplanted into the public sector without making it impossible for officials to fulfill their responsibilities of public office. HB – 582 represents an assault on the basic principles of representative self-government. It should be repealed in the coming session of the General Assembly and that repeal should be signed into law by the new Governor.

As we approach the fall elections, every candidate for the General Assembly, and those for Governor, should be required to state clearly their position on HB – 582 and public sector collective bargaining.   

J. Kennerly Davis is a former Deputy Attorney General for Virginia and, while a member of management of a Fortune 500 corporation, was responsible for labor negotiations.