Virginia regulations guarantee secret ballots for public sector union elections
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New regulations from the Virginia Department of Labor and Industry on “Local Government Union Requirements and Employee Protections” became effective July 30, 2025. An important employee protection in the regulations is a guarantee of the right to a secret ballot in elections in which employees vote on whether they want to be represented by a labor union. Developing this regulation has been a project I have worked on for several years with the Freedom Foundation and the Virginia Department of Labor and Industry.
The NLRA and many state and local laws require a union’s petition for exclusive recognition to be supported by evidence, such as signed authorization cards, that thirty percent of employees support the petition. If the petition is granted, an election is held, and the union is certified as the exclusive representative if it wins a majority of the vote. Card check allows a union to be certified without an election if it presents authorization cards that it secured from a majority of workers, one way or another.
An election with a secret ballot is an essential verification of a union’s support in a bargaining unit. It cures any improprieties in the signature campaign. Card check eliminates that essential verification. Authorization cards may not accurately reflect the degree of a union’s support. They can be obtained by forgery and coercion.
Authorization cards can never be obtained secretly or confidentially. A union organizer approaches a worker, sometimes at his home, and requests his signature on a card. The worker either signs or refuses, risking the consequences. As Justice Douglas observed, “The failure to sign a recognition slip may well seem ominous to nonunionists who fear that if they do not sign they will face a wrathful union regime, should the union win.” The social situation itself imposes pressure on the worker to sign the card, either to avoid offending the organizer or to get rid of him.
The Virginia General Assembly sought to protect the secret ballot from such depredations by enacting in 2013 a law that provides, “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.” The law does not say how that fundamental right will be guaranteed from infringement, and it appears to have never been enforced.
The new regulations make this law applicable to local government public employees. This is necessary for two reasons. First, unless a regulation of the Virginia commissioner of labor and industry extends Virginia labor laws to state and local government, they don’t apply to state and local government. Second, in 2020 Virginia legalized collective bargaining by counties, cities, towns, and school boards.
After Virginia’s Department of Labor and Industry initially proposed the regulations, Dominic Pino of National Review observed that the ideal outcome would be to “return Virginia to being one of the few states that outright prohibit collective bargaining in the public sector.” That outcome will have to await a different political makeup of the Virginia General Assembly. “In the meantime,” he wrote, “the proposed regulations are needed to make sure local government unions are following the law.”
Extension of collective bargaining to the public sector increased the risk of undermining the right to a secret ballot. Governmental employers are not answerable to stockholders concerned about the costs of unionization. Rather, they are answerable to an electorate that includes public-sector employees, many of whom are more organized and carry greater influence than their fellow voters. As a result, governmental employers are more likely than private employers to make concessions, such as acceding to a union’s request for recognition by card check or some other means that gives short shrift to employees’ right to vote by secret ballot under the guise of harmonious labor relations.
So far, the ordinances and resolutions that Virginia local governments have adopted on collective bargaining bear this out. Many fail to guarantee from infringement “the right of an individual employee to vote by secret ballot” because they provide for ways around that procedure or make no provision at all for secret ballot elections. Even worse, the Richmond School Board’s resolution on collective bargaining authorizes recognition of a union without an election if the union demonstrates majority support by “membership cards, dues payment, a petition, authorization forms, or other evidence of an Employee’s desire to be represented by an Employee association for the purposes of collective bargaining. ” In other words, by card check. The resolution also denies the employer any ability to verify the validity or the number of cards.
In addition, the new regulations advance the labor protections deriving from the landmark Supreme Court case of Janus v. AFSCME (2018). Janus prohibited involuntary deduction of union fees, usually via wage withholding, from public employees who are not members of the union. Janus held that unless non-member employees “clearly and affirmatively consent,” such union wage deductions violate the First Amendment. Unions have responded by devising contractual stratagems to prevent employees from escaping their membership.
Fortunately, the protections of Virginia’s law and the new regulations applying it to local government are not limited to nonmembers. They ensure that no public employee has wages withheld in this manner, regardless of union membership, without “written and signed authorization,” thus separating membership status from authorization of the deduction of dues.
Unlike union membership, authorization of dues deductions and revocation of that authorization should be between the government (public employer) that deducts dues from paychecks and the employee. A comment submitted by the Freedom Foundation when the regulations were proposed advocated that the regulations provide that an employee may cancel dues deductions at any time by providing notice to the employer. However, the Department of Labor and Industry declined to add a provision on revocation. That omission could become a problem for workers.
Under the new regulations, the commissioner may now request prosecution of violations of the preceding protections by the Commonwealth’s Attorney for the county or city where the violation occurred. But a conflict of interest is readily apparent: a Commonwealth’s Attorney called upon for enforcement would have been elected by the same electorate that chose the representatives who had embraced collective bargaining for public employees. Commonwealth’s Attorneys may be discouraged from exhaustively investigating and prosecuting violations by the risk of provoking the wrath of well-funded unions come election time.
Thankfully, there is another means of enforcement. The regulations also extended to local government a statute that allows Virginia circuit courts to “enjoin any violations of this title or the standards, rules and regulations promulgated thereunder” upon petition of the commissioner himself or his authorized representative—the attorney general.
The Department of Labor and Industry will be reaching out to labor and management to make sure they are aware of the new rules and of the need to comply with them. To be effective, the rules will require monitoring of collective bargaining units. As part of the monitoring process, the Department should publicize a means by which workers can complain to the Department of violations, and the Department should investigate and act upon complaints it receives. Only then will the proposal’s needful enforcement mechanisms guarantee employee protections from infringement.
Research Associate Summit Sarkar contributed to this blog post.