Legal Insider: Fairfax County employees unionization moves forward

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Recently, on October 16, the Fairfax County Board of Supervisors approved the process for collective bargaining for a significant number of Fairfax county employees.

Many Northern Virginia communities have begun the process of implementing collective bargaining following the Virginia General Assembly’s repeal of a state ban on such agreements in 2020. Arlington County and the City of Alexandria have also enacted collective bargaining agreements for their employees. The move will affect a majority of county employees, and Fairfax appears to have modeled their ordinance, to some extent, on the Arlington County ordinance from July of 2021.

In the ordinance, Fairfax County authorized potential unions for all employees except seasonal/temporary employees, confidential employees, interns, managers/supervisors, and a few other categories of employees. Eligible employees would be organized into three bargaining units of police, fire/emergency medical services, and those employed in the general government category.

In order to start the collective bargaining process, a government needs to appoint a manager or board to carry out the job of impartially carrying out the applicable labor law. According to the new Fairfax County ordinance, the job of running elections and certifying individual unions was given to a new Labor Relations Administrator whose job will involve many of the same types of duties held by the National Labor Relations Board for private companies.

This new position is subject to confirmation by the Fairfax County Board of Supervisors. Employees covered will have many of the traditional rights given to other unionized workforces and have the ability to take disputes to binding arbitration.

Strikes continue to remain barred under the new ordinance and can lead to termination of employment. In addition, traditional unfair labor practice charges, labeled in the Fairfax ordinance as “prohibited practice charges,” would be available for violations of labor law.

In general, some of the most important aspects of unionization for eligible employees generally include:

• A level playing field for union officials and management to discuss important employment issues as equals without fear of retaliation
• The ability of unions to negotiate binding solutions for employees with officially recognized unions
• Employee protections from interference by management in labor matters through the complaint process (similar to the unfair labor practice complaint process)
• Binding arbitration for violations of collective bargaining agreements and appeals of disciplinary actions by independent arbitrators not employed by the County

According to news accounts, and in our experience representing unions before other labor boards, it will likely take at least two years before any collective bargaining agreements are effective. Given the recency of the notice, it appears that Fairfax County is still in the process of hiring a Labor Relations Administrator and likely other key members of that office.

It is unknown whether any potential unions have sought recognition as of yet, but the unionization process in Fairfax County has started and will lead to better employee rights for covered Fairfax County employees.

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