West Virginia Supreme Court of Appeals will hear case involving blocked union dues law next week

The West Virginia Supreme Court of Appeals will hear arguments on Tuesday, Oct. 26, in a case involving a union dues law that a judge blocked from going into effect earlier this year. The law would prohibit public-sector employers from deducting union dues from employees’ paychecks.

Background

In May, a group of 12 West Virginia unions filed a lawsuit in Kanawha County Circuit Court to block a state law passed in March 2021 from going into effect. The law, Republican-sponsored House Bill 2009, would prohibit “deductions and assignments of earnings for union, labor organization, or club dues or fees” from the paychecks of state, county, and certain municipal employees, including teachers and other school personnel. The unions alleged the law would violate both the state constitution’s equal protection and contracts clauses and union members’ free speech rights. 

In June, Circuit Judge Tera Salango temporarily blocked the law from going into effect, ruling the unions’ case was likely to be successful. Salango was elected in 2018.   

About the case

The West Virginia attorney general’s office appealed Salango’s ruling to the West Virginia Supreme Court of Appeals. The attorney general’s office said the unions “have not shown that they are likely to succeed on the merits of their claims or that they will suffer irreparable harm if this Court enforces the law as the Legislature wrote it. On the other hand, an injunction will irreparably harm both the State and the public interest by unnecessarily delaying implementation of a presumptively valid law.” The attorney general’s office said the supreme court “has now held—twice—that the West Virginia Constitution does not contain any right to collect union dues. This challenge to West Virginia’s Paycheck Protection Act implicates similar interests, yet in a context where any harm to Defendants is even less than in those earlier cases. The Court should reach the same result here and uphold the law.” 

The National Right to Work Legal Defense and Education Foundation filed an amicus curiae brief in support of the appeal. In the brief, attorney Matthew B. Gilliam wrote: “West Virginia has a definite interest in protecting employees from labor organizations’ coercive influence over employees who find it extremely difficult to extract themselves from dues deduction authorizations … The Act does not prohibit employees from paying union dues if they wish and voluntarily consent within the meaning of Janus. It merely requires that the Unions and their members take the initiative to make their own dues payment arrangements through cash, checks, credit card or bank account authorizations.” 

Attorneys for the unions responded, “[T]he preliminary injunction has maintained the status quo that has been in place—without complaint or disruption—for approximately fifty-five years. The status quo should remain undisturbed while the parties undertake discovery and have a hearing on the merits regarding a permanent injunction.” 

The unions’ attorneys summarize their case as follows: “As the circuit court recognized, the implementation of the Act will irreparably harm and significantly burden Petitioners’ ability to collect dues while continuing to allow paycheck deductions for a host of other purposes including, but not limited to, charitable deductions and private insurance. Moreover, the implementation of the Act will violate equal protection and impair contractual rights of Petitioners who have negotiated agreements with public employers for deduction of dues. Finally, it will adversely affect the free speech rights of Petitioners inasmuch as the paycheck deduction of dues arises from a decision by an employee to associate with the Union and pay his or her dues in this manner.”

The West Virginia Deputy Sheriffs’ Association (WVDSA) filed an amicus curiae brief supporting the unions’ case. Attorneys for the Association said, “The WVDSA has a compelling interest in this case because numerous active deputy sheriffs throughout West Virginia have historically had their WVDSA and local DSA dues deducted from their paychecks. … Quite frankly, these voluntary agreements are a convenience to deputy sheriffs and their local associations and do not cost any participating county any more public funds than the myriad of voluntary deductions coming out of the paychecks of other county employees. … [Deputy sheriffs] deserve to have the ability to keep having their WVDSA and local DSA dues voluntarily deducted from their paychecks until this case is fully and finally decided.”

Arguments are scheduled to begin at 10:00 a.m. on Tuesday, Oct. 26. 

The case name and number in the West Virginia Supreme Court of Appeals are James C. Justice, II, Governor v. West Virginia AFL-CIO, et al. (21-0559).

Context

The five-member West Virginia Supreme Court of Appeals is the state’s court of last resort. Supreme court justices are chosen in nonpartisan elections and serve 12-year terms. Our “Ballotpedia Courts: State Partisanship” report, which evaluated justices’ partisan affiliations through their behavior before joining the court, found that the West Virginia Supreme Court of Appeals had four Republican-affiliated justices and one Democratic-affiliated justice. In 2020, the West Virginia Supreme Court heard 899 cases, and decided 91.5% of them unanimously.

West Virginia Gov. Jim Justice (R) was first elected governor in 2016 as a Democrat. In 2017, Justice switched parties, giving Republicans trifecta control of the state. Republicans currently hold veto-proof majorities in both chambers of the state legislature. 

What we’re reading

• The San Diego Union-Tribune, “San Diego employees’ union questions effects of vaccine mandate,” Oct. 21, 2021    
• Axios, “First look: Harris wants more union membership in fed workforce,” Oct. 20, 2021
• The Washington Post, “Fairfax County approves collective bargaining ordinance,” Oct. 20, 2021

The big picture

Number of relevant bills by state

We are currently tracking 101 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue. 

• New York A08411: This bill would prevent public employers from firing or disciplining public employees who were selected to represent an employee organization or who commented on related matters.
  • Democratic sponsorship. 
  • Introduced, read first time, and referred to the Assembly Governmental Employees Committee on Oct. 20. 
• Wisconsin AB614: This bill would:

1. Allow state and municipal employees to bargain over any increase in wages, 
2. Allow most state and general municipal employees to bargain over hours and employment conditions, 
3. Allow for voluntary dispute settlement procedures between municipal employers and labor organizations.
4. Allow representatives for most municipal and state employees to be selected by a simple majority of employees voting, and 
5. Repeal an annual certification requirement for bargaining unit representatives.

• Democratic sponsorship. 
• Introduced, read first time, and referred to the Assembly Committee on Labor and Integrated Employment on Oct. 14.