More than a dozen labor unions on Tuesday asked the West Virginia Supreme Court to overturn legislation passed in the 2021 regular session of the Legislature the unions contend is deliberately intended to single them out for financial harm.
“I think the statute is a punitive measure over the Legislature’s disagreement with the advocacy being made by the public employee unions,” attorney Robert Bastress, attorney for the unions, said during oral arguments before the court Tuesday.
At issue is whether the so-called Paycheck Protection Act deliberately targets public employee unions for harm, or simply is intended to relieve public employers of the burden of having to process employees’ union dues as a payroll deduction.
The legislation, passed by Republican supermajorities in the House and Senate, prohibits public employers from making payroll deductions for “union, labor organization or club dues or fees.”
In June, Kanawha Circuit Judge Tara Salango issued a preliminary injunction preventing the new law from taking effect, saying it would cause irreparable harm to the unions.
In issuing the injunction, Salango stated, “The governor and many members of the Legislature have not hidden their dislike for the labor unions. 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.”
State Solicitor General Lindsay See argued Tuesday that there is no proof the law would irreparably harm public employee unions, or that it is unconstitutional.
“A law that says the state is simply not going to help with fundraising ... that is not irreparable harm,” See told the court.
“Deduction of union dues is a special benefit the Legislature may not chose to extend to union groups,” she said, arguing there is no viable evidence that legislative majorities enacted the legislation to deliberately harm unions.
Bastress said the statute itself is evidence of deliberate harm, overturning a more than half-century tradition of state agencies, counties and school boards permitting payroll deductions for union dues.
He noted that 54 of the state’s 55 county boards of education provide payroll deductions for West Virginia Education Association and American Federation of Teachers-West Virginia dues.
“What’s behind it? Where did it come from?” he asked. “It’s not every organization. It’s labor unions.”
He said the argument that the legislation relieves the state and counties from the administrative burden of making the payroll deduction is absurd, citing one county that offers employees 24 other payroll deduction options.
He noted that payroll deductions are still permitted for credit unions, but not labor unions.
“One is permitted, one is prohibited,” Bastress said.
“We just want the same rights as anyone else to enter into agreements with public employers for payroll deductions,” he told the justices.
Justices, particularly Chief Justice Evan Jenkins, peppered Bastress with questions, including asking why the legislative animus argument wasn’t made in what are known as the Morrisey cases, in which the Supreme Court upheld West Virginia’s Right to Work law.
Bastress said giving employees who absolutely do not want to be members of labor unions the ability to opt out is a legitimate legislative purpose, as opposed to the legislation in question, which is specifically designed to harm unions.
“I haven’t seen any other state statute that carves out unions exclusively and excludes them from payroll deductions,” Bastress said.
See argued that the payroll deductions are a “gratuitous benefit” the state is not legally obligated to provide. She said the unions failed to show proof of substantial financial harm if they are obligated to use other methods to collect dues.