CHARLESTON – Labor unions have asked the state Supreme Court to overturn legislation that they say is meant to harm the unions financially.
In June, Kanawha Circuit Judge Tera Salango issued a preliminary injunction preventing the Paycheck Protection Act from taking effect.
“The governor and many members of the Legislature have not hidden their dislike for the labor unions,” Salango wrote in her injunction. “There have been open attacks on the unions in the media, and they are welcome to criticize whoever they please but when a law is passed that treats a certain group differently from others, then it should be subject to additional scrutiny.”
Morrisey
Both sides presented oral arguments October 26 to the Justices.
“This statute is a punitive measure over the Legislature’s disagreement with the advocacy being made by the public employee unions,” said Robert Bastress, who is representing the unions.
The unions contend the Paycheck Protection Act targets public employee unions. The government says the act is meant to keep public employers from having to process union dues as a payroll deduction. If it goes into effect, the law would prohibit public employers from making payroll deductions for union, labor organization or club dues or fees.
Lindsay See, state Solicitor General, argued on behalf of Gov. Jim Justice. She said the law doesn’t harm unions and is constitutional.
“A law that says the state is simply not going to help with fundraising – that is not irreparable harm,” See said during Tuesday’s oral arguments. “Deduction of union dues is a special benefit the Legislature may not chose to extend to union groups. ...
“It’s not unconstitutional to require the respondents to fundraise without the state’s assistance. ... Refusing to subsidize or make it easier to fundraise is different from burdening those rights.”
But Bastress questioned the motive behind the legislation, saying union dues have been permitted to be deducted from state and county paychecks for more than 50 years. He also said all but one county board of education provides payroll deductions for West Virginia Education Association and American Federation of Teachers – West Virginia union dues.
“What’s behind it? Where did it come from?” Bastress said. “It’s not every organization. It’s labor unions.
“We just want the same rights as anyone else to enter into agreements with public employers for payroll deductions.”
Following Tuesday’s arguments, state Attorney General Patrick Morrisey issued a statement regarding the matter.
“The Supreme Court of Appeals of West Virginia has more than once held that the West Virginia Constitution does not contain any right to collect union dues,” he said. “Just four years ago, this court held that there was no basis to preliminarily enjoin the 2016 West Virginia Workplace Freedom Act, which prohibited contracts requiring all employees — members and non-members alike — to pay union dues.
“This challenge to West Virginia's Paycheck Protection Act implicates similar interests. The court should reach the same result here and uphold the law.”
Morrisey said the intent of the law was to ensure West Virginia’s workers aren’t forced to “give up their hard-earned dollars.”
“As the U.S. Supreme Court has said, employees must give clear, unequivocal consent before their paychecks can be diverted for union dues,” Morrisey said. “The Paycheck Protection Act does nothing more than remove the state as a middleman from that process — ensuring that employees are truly consenting.
“It places unions in the same position as the many other businesses and organizations who must collect their own fees from willing customers or members.”
Morrisey said he disagrees with the idea that the law would undermine First Amendment rights.
“In fact, it preserves them,” he said. “The Act ensures that the First Amendment rights of every employee are respected by guaranteeing that their earnings are not unintentionally diverted to pay for speech and other activities that they never intended to support.”
West Virginia Supreme Court of Appeals case number 21-0559