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CHARLESTON -- A coalition of unions representing public workers, teachers, and first responders announced the filing of a lawsuit against the state to block implementation of a bill prohibiting union dues being taken from paycheck.
The West Virginia AFL-CIO and 11 other unions filed suit Thursday afternoon in Kanawha County Circuit Court along with West Virginia State Police Cpl. J.W. Smith Jr. and Kanawha County school teacher Jacob Fertig.
The unions are trying to block implementation of House Bill 2009, relating to limitations on the use of wages and agency shop fees by employers and labor organizations for political activities. HB 2009, also known as the "Paycheck Protection Act," was passed March 19 and signed into law by Gov. Jim Justice March 30. The bill goes into effect June 17.
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.
According to the court filing, the union alleges that HB 2009 discriminates against labor unions by prohibiting dues from being taken out of union member paychecks while other deductions to paychecks are made on behalf of insurance companies, credit unions, non-profits, student loans, court-ordered garnishments, etc.
Josh Sword, president of the West Virginia AFL-CIO, said HB 2009 was a retaliation bill aimed at public employees, especially teachers and school service personnel who went on work stoppages in 2018 and 2019 for pay raises.
"As is clearly stated in our circuit court filing, the so-called 'Paycheck Protection' Act discriminates against organized public employees who seek to ensure safe workplaces and fair treatment by their employers and was passed by this legislative majority purely out of spite," Sword said. "House Bill 2009 selectively and discriminately prohibits paycheck deductions for public employees and their unions, a practice that has gone on for more than 50 years without a problem, while still allowing hundreds of other paycheck deductions to remain in place."
The unions raise a number of constitutional arguments, including accusing the state of violating the Equal Protection Clause by discriminating against public unions, the Contracts Clause for interfering with private contracts between unions, governments, and public employees and accuses the government of violating their First Amendment rights to freedom of expression.
The case was assigned to Kanawha County Circuit Judge Tera Salango, the wife of Kanawha County Commissioner Ben Salango. During the 2020 primary and general election, Ben Salango was endorsed by numerous unions, including the AFL-CIO, in his campaign for governor against Republican Jim Justice.
Sword accused Justice of being hypocritical. While Justice signed HB 2009 into law, he vetoed a similar bill in 2017. Union representatives and members were also largely absent from the debate on HB 2009 due to Justice's executive order prohibiting the public from the State Capitol Building during the COVID-19 pandemic. Only people with official business were allowed inside, requiring witnesses to be invited to committee meetings during the legislative session.
"In a time when our public employees, particularly our police, firefighters, corrections officers and other first responders, have kept us safe and healthy in the face of a deadly pandemic, Governor Justice and legislative leaders locked the doors of the Capitol, then wasted time and taxpayer money on bills like this during this year's legislative session," Sword said. "It's disgraceful, and not surprising, that so many West Virginia citizens have no confidence in state government leaders."