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W.Va. Supreme Court hears arguments in Paycheck Protection Act case

Solicitor General Lindsay See, bottom right, presents her argument for lifting a stay of the Paycheck Protection Act before the West Virginia Supreme Court of Appeals. (Photo Provided)

CHARLESTON — Justices of the West Virginia Supreme Court of Appeals heard an appeal Tuesday urging them to lift a stay of a 2021 law prohibiting union dues from being taken from paychecks automatically.

The state Supreme Court heard arguments Tuesday morning from representatives of Gov. Jim Justice and a dozen unions after a Kanawha County judge issued a temporary restraining order in June blocking enforcement of House Bill 2009, the Paycheck Protection Act.

HB 2009 prohibits employers and payroll agents from withholding a portion of an employee’s wages and salaries for political activities on behalf of a union or any other private organization without express written authorization by the employee. The bill also prohibits state, municipal, and county governments from withholding union or club dues from a public employee’s wages or salaries.

The West Virginia Legislature passed the bill March 19, with Justice signing the bill 12 days later. The West Virginia AFL-CIO and 11 other unions filed suit May 20 in Kanawha County Circuit Court along with West Virginia State Police Cpl. J.W. Smith Jr. and Kanawha County school teacher Jacob Fertig to block implantation of the law. Kanawha County Circuit Court Judge Tera Salango granted a temporary restraining order June 15.

Lindsay See, solicitor general for the Attorney General’s Office, argued before the five justices that the case brought against HB 2009 is similar to a case brought by several of the same unions against the Workplace Freedom Act, West Virginia’s right-to-work law passed by the Legislature in 2016 allowing workers to opt out of union dues.

“This court rejected constitutional challenges to a law that made it illegal to collect union dues from an entire category of workers even though many of the respondents here today argue the result is they effectively had to provide services for free,” See said. “Here, the circuit court didn’t even acknowledge those decisions, yet deemed it unconstitutional to require the unions to do what a majority of entities do in the state every day, which is to collect money from their customers and subscribers without the state’s help.”

Robert Bastress Jr., counsel for the AFL-CIO and union groups, said the Paycheck Protection Act interferes with employee/employer relationships, many of which have been in place for decades. Bastress said the law puts limitations on unions that other organizations are not placed under.

“I think it is important to state at the outset the narrow context of the circuit court’s decision, which was to essentially preserve the status quo that has existed in this state for well over half a century,” Bastress said. “It had existed without incident, without controversy, and even without complaints … Here, what the state has done is single out unions to tell them they cannot take advantage of a procedure that would facilitate employees who want to pay their union dues and want to support their union from doing so.”

The state Supreme Court ruled in 2020 that state’s right-to-work law was legal. The AFL-CIO filed a lawsuit against the Workplace Freedom Act in Kanawha County Circuit Court in 2016. Kanawha County Circuit Court Judge Jennifer Bailey issued an injunction that same year to block the law but didn’t issue a written ruling on her reasoning for the injunction until six months later.

The state Supreme Court overturned that injunction in March 2017 and chided Bailey for taking so long on the case. Bailey ruled in favor of the AFL-CIO and overturned the law in 2019, though the state was granted partial summary judgment as well. Attorney General Patrick Morrisey appealed the decision to the state Supreme Court and the lower court decision was stayed before ultimately Bailey ruling in favor of the unions was overturned by the Supreme Court.

Bastress received most of the questions from justices, particularly Chief Justice Evan Jenkins who asked why Bastress didn’t present arguments he made in his brief for the Paycheck Protection Act when he represented the unions last year during arguments 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 it leads to the question whether this is a new, novel approach you’re asserting now having come up short in (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 aid. “There’s only one classification we’re challenging … and that is the exclusion of payroll deductions for unions, labor organizations, and clubs. That classification is based entirely on the exercise of an employee’s associational rights.”

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