CHARLESTON – West Virginia Supreme Court of Appeal justices heard an appeal on Tuesday urging them to lift the suspension of a 2021 law banning the automatic deduction of union dues from paychecks.
The state Supreme Court heard arguments from representatives of Governor Jim Justice and a dozen unions on Tuesday morning after a Kanawha County judge issued a temporary restraining order in June blocking the application of the bill of 2009, the Paycheck Protection Act.
HB 2009 prohibits employers and payroll officers from withholding a portion of an employee’s wages and salaries for political activities on behalf of a trade union or other private organization without the express written permission of the employee. The bill also prohibits state, municipal, and county governments from withholding union or club dues from the wages or salaries of a public employee.
The West Virginia legislature passed the bill on March 19, and the judiciary signed the bill 12 days later. West Virginia’s AFL-CIO and 11 other unions filed a lawsuit May 20 in Kanawha County Circuit Court, along with West Virginia State Police Corporal. Kanawha County schoolteacher JW Smith Jr. and Jacob Fertig to block law enforcement. Kanawha County Circuit Court Judge Tera Salango granted a temporary restraining order on June 15.
Lindsay See, solicitor general of the attorney general’s office, argued before the five judges that the case brought against HB 2009 is similar to a case brought by several of the same unions against the Workplace Freedom Act, the right to work law. of West Virginia passed by the legislature in 2016, allowing workers to opt out of union dues.
“This court has dismissed constitutional challenges to a law that made it illegal to collect union dues from an entire category of workers, even though many respondents here today argue that the result is that they indeed had to provide services for free. “, said See. “Here, the circuit court did not even recognize these rulings, but found it unconstitutional to require unions to do what the majority of entities do every day in the state, i.e. collect money from their customers and subscribers without government assistance. “
Robert Bastress Jr., lawyer for the AFL-CIO and labor groups, said the paycheck protection law interferes with employee / employer relationships, many of which have been in place for decades. Bastress said the law places limits on unions that other organizations are not subject to.
“I think it is important to clarify at the outset the narrow context of the circuit court ruling, which was essentially aimed at preserving the status quo that has existed in this state for more than half a century,” said Bastress. “It had existed without incident, without controversy and even without complaints … Here, what the State has done is point the finger at the unions to tell them that they cannot take advantage of a procedure that would facilitate employees who want to pay their union dues and want to prevent their union from doing so.
The state Supreme Court ruled in 2020 that the state’s right to work law was legal. The AFL-CIO filed a lawsuit against the Freedom to Work Act in the Kanawha County Circuit Court in 2016. Kanawha County Circuit Court Judge Jennifer Bailey issued a similar injunction. year to block the law, but did not issue a written decision on his reasoning for the injunction until six months later.
The state Supreme Court overturned that injunction in March 2017 and blamed Bailey for taking the case so long. Bailey ruled in favor of the AFL-CIO and struck down the law in 2019, although the state also obtained partial summary judgment. Attorney General Patrick Morrisey appealed the decision to the state Supreme Court and the lower court’s decision was stayed before Bailey’s ruling in favor of the unions was overturned by the Supreme Court.
Bastress received most of the questions from the judges, especially Chief Justice Evan Jenkins, who asked why Bastress did not make the arguments he made in his brief for the Paycheck Protection Act when he represented the unions last year when arguing for the Workplace Freedom Act.
“The question is, was there not this similar argument or did you make the argument… and if you didn’t, why not? I guess that leads to the question of whether this is a new and innovative approach that you now claim to have failed (the Workplace Freedom Act case), ”Jenkins asked Bastress.
“It was clear what the legislature was trying to do there: it was trying to protect employees who didn’t want to support unions from being forced to do so,” Bastress said. “There is only one classification that we are contesting… and that is the exclusion from payroll deductions for unions, labor organizations and clubs. This classification is based entirely on the exercise of the associative rights of an employee.
Steven Allen Adams can be contacted at [email protected]