The West Virginia Supreme Court is considering whether to uphold a lower court order prohibiting the state’s Paycheck Protection law from going into effect. The law specifically prohibits state and local governments from deducting union dues from public employees’ paychecks.
The Court’s decision may well rest on specific arguments over the standard for issuing a preliminary injunction. But there is a bigger issue that is being played out.
Unions in West Virginia have lost much of their political influence as the power in the Legislature has shifted from Democrat to Republican.
For example, the Legislature passed a right-to-work law in 2016. It was challenged, and ultimately upheld, by the state Supreme Court. This past session, Republicans bypassed objections from the teacher unions and broadened the state’s charter schools initiative.
Now the labor unions are mounting this legal challenge to the Paycheck Protection law, arguing that the Legislature is trying to further weaken them.
Union attorney Bob Bastress told the Justices Tuesday, “The evidence of animus and ill motive is in the statute itself. I think this is a punitive measure based on the legislature’s disagreement with the advocacy being made by public employee unions.”
Frankly, it is difficult to reach any other conclusion.
Striking schoolteachers descended on the State Capitol in 2018 in protests over their health insurance and pay. They shut down schools, filled the Capitol halls, chanted for hours, and generally made life miserable for Republicans.
Teachers struck again in 2019. This time they went to the Capitol to protest Republican efforts to pass legislation authorizing charter schools.
The echoes of those teacher rallies at the Capitol are still reverberating in the ears of Republicans. Their response was to pass a law that makes it harder for public employee unions to collect their dues.
You can imagine a Republican lawmaker grousing, “I’m not going to help the teacher unions collect money so they can run political ads against me.”
That is not what they would say publicly. The for-the-record explanation is that it is not the government’s responsibility to be the dues collector for the unions. Philosophically, they have a point. However, practically, deducting dues from a teacher’s paycheck is no more of a problem than any other deduction.
Additionally, if the employer and the employee can agree on the dues deduction, why should the state Legislature step in and say that is against the law?
But Republicans control the Legislature, and thus the legislative agenda, and unless there is a constitutional problem with a bill, the high court may be reluctant to step in. West Virginia Solicitor General Lindsey See, arguing on behalf of the state, told the court, “Laws at the Legislature are presumed to be constitutional, and petitioners are burdened to prove that they face permanent and irreparable harm.”
It is impossible to predict what the Supreme Court will do on the injunction question. However, Chief Justice Evan Jenkins, who wrote the majority opinion for the Court last year when it upheld the right-to-work law, may have provided a hint when he said he was “intrigued” by Bastress’s argument that the basis for the Paycheck Protection law was rooted in hostility toward the unions.
We will have to wait and see. Meanwhile, the larger issue for the labor unions is that the crafters of that bill, and right-to-work, and charter schools, hold super majorities in the Legislature.