CHARLESTON – A group of a dozen public employee unions have filed a petition claiming a new state law that keeps employers from automatically deducting union dues from paychecks is retaliatory.
The plaintiffs on the petition, filed May 20 in Kanawha Circuit Court, are West Virginia AFL-CIO, American Federation of Teachers – West Virginia AFL-CIO; United Mine Workers of America; Communication Workers of America District 2-13 AFL-CIO; Professional Firefighters of America; West Virginia Education Association; West Virginia School Service Personnel Association; West Virginia State Lodge of the Fraternal Order of Police; District 8 of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers International Union; CWA/NCPSO Local 2055/West Virginia Division of Corrections and Rehabilitiation; West Virginia Troopers Association/CWA Local 2019; CWA Local 2001/West Virginia Alcohol Beverage Control Administration Agency; Corporal J.W. Smith Jr. and Jacob Fertig. The lone defendant is West Virginia Gov. Jim Justice.
“The unions certainly feel that the inability to have payroll deductions is a major hit for them,” Robert Bastress, one of the attorneys representing the unions, told The West Virginia Record. “If we can get any kind of relief out of the courts, I think it would be important. Personally, I do think they’ve been targeted, but there also are problems with the statute beyond just that it targets unions. There are some constitutional problems as well.”
Until House Bill 2009, or the Paycheck Protection Act, was passed this legislative session, employees and employers could have union dues automatically deducted from paychecks. The plaintiffs seek an injunction prohibiting enforcement of the act that would be “dismantling a practice that has, for more than 50 years, permitted public employees and employers to agree to have union dues withheld from their paychecks.”
They also seek a declaratory judgement finding that the act violates the Equal Protection Clause of the U.S. Constitution and the Contracts Clause of the West Virginia Constitution and that it also discriminates against the viewpoint of certain employees and their affiliated associations “violating the free speech rights of union and union members without substantial or compelling justification.”
“The act is driven by legislative animus against, and in retaliation for, the constitutional exercise of the right to free speech and association under the West Virginia Constitution,” the petition states.
The bill was passed March 19, and Justice signed it March 30. It is supposed to go into effect June 17.
If it goes into effect, the bill would keep employers from withholding union dues without an annual express, written request of the employee via a form from the Secretary of State’s office. Now, the agreements typically automatically renew from year to year unless canceled by the union or the employee.
The president of the West Virginia AFL-CIO says the bill has no other purpose than to attack unions and public employees.
“When I look at bills and proposals, I try to think about what the purpose is, what the intent is, what the result will be,” Josh Sword told The Record. “I hope there is something that would have a positive impact on our economy and will help working families.
“This bill doesn’t address anything like that. There is no positive economic value. It is purely retaliation for public employees over the last few years making their voices heard.”
Sword called the act the “legislative version of cancel culture,” “vindictive” and “spiteful.”
“It’s a disgrace they spent any time at all on this bill, but this isn’t the only bill like this,” Sword said. “They’re more focused on political paybacks as opposed to passing bills that will help the state. They’ve been in charge for six years, and we’re moving in the wrong direction. We’re moving closer to the bottom. Mississippi is now thanking West Virginia.”
Similar legislation had been introduced before. Justice vetoed a similar bill in 2017 and spoke against the idea when it was included in an omnibus education bill in 2019. The petition references those moves as well as discussing how the governor’s relationship with unions has soured in recent years.
It also notes that in 2017, Justice called such a move a “hardship” to employers and employees and an “unnecessary burden” on employers as well as an “inconvenience” for employees and organizations collecting dues.
But in 2018 and 2019, public employees – particularly education employees – struck.
“In the wake of this constitutionally protected concerted action, government leaders – including respondent (Justice) – have referred to union leadership as ‘union thugs’ and have developed a legislative agenda that may be accurately characterized as anti-union and anti-employee,” the petition states before listing several examples of such actions.
The petition also says the 2021 legislative session introduced and enacted several pieces of legislation that was “antithetical to the interest of public employees – particularly education employees.”
It lists HB 2012 which expands charter schools, HB 2013 which provides educational savings accounts of about $4,600 per year and a Senate bill that codifies making public employee work stoppages and striking illegal. It also mentions other bills that lessened teacher certification requirements and might create special education instructor shortages.
“There are literally hundreds of other paycheck deductions,” Sword told The Record. “Taxes, insurance, Christmas saving plans, charities, parking. But now, one of them – union dues – is not legal.
“We have protections in our constitutions. First and foremost, public employees and their unions are being discriminated against.”
A spokesman for West Virginia Attorney General Patrick Morrisey's office said his office hadn't been served yet.
"So we have not had the opportunity to review the filing and discuss it with the governor's office," Curtis Johnson told The Record. "However, our office will be defending the statute in question as there should be little doubt about its legality.”
A spokesman for the governor's office did not return messages seeking comment.
The unions seek a preliminary and permanent injunction against enforcement of HB 2009. They also seek attorney fees and court costs.
The unions are being represented by Bastress from Morgantown as well as Jeffrey G. Blaydes of Blaydes Law in Charleston. The case has been assigned to Circuit Judge Tera Salango.
Kanawha Circuit Court case number 21-P-156