In Justice v. West Virginia AFL-CIO, the West Virginia Supreme Court of Appeals, the state’s highest, and currently its only, appellate court, overturned a preliminary injunction that enjoined a state law prohibiting state employers from deducting union dues and association membership fees from public employees’ wages.[1] The Court, in a 3-2 ruling, held that the circuit court, the trial court in West Virginia, abused its discretion in granting the injunction because the plaintiffs—labor unions, employee associations, and their individual members—were unlikely to succeed on the merits of their free speech, equal protection, and contracts clause claims. In dissent, Justice John A. Hutchison, joined by Justice William R. Wooton, concluded that the circuit court properly entered a preliminary injunction based on the limited evidence presented and criticized the majority for effectively deciding the merits and co-opting the role of the circuit court.[2]

Background

On March 19, 2021, the West Virginia Legislature passed the West Virginia Paycheck Protection Act (the Act).[3] The Act bars state employers from deducting union dues and association membership fees from public employees’ wages by amending the definition of “deduction” in the Wage Payment and Collection Act.[4] One month before the Act’s effective date, a number of labor unions, employee associations, and individual members of those groups filed a complaint alleging that the Act violates several provisions of the West Virginia Constitution and sought a preliminary injunction preventing the law from going into effect.[5] They argued that the Act violates their equal protection rights by treating unions differently than other entities and their free speech and associational rights by forcing them to devote additional resources to collecting dues since they cannot rely on automatic deductions.[6] The plaintiffs also argued that the Act impinges upon long-standing agreements between public employees, unions, and public employers in violation of West Virginia’s contract clause.[7] The circuit court granted the preliminary injunction, and the state appealed.[8]

The Court's Opinion

The West Virginia Supreme Court of Appeals first explained that courts must consider preliminary injunction requests “in view of all the circumstances of the particular case; regard being had to the nature of the controversy, the object for which the injunction is being sought, and the comparative hardship or convenience to the respective parties involved in the award or denial of the writ.”[9] Courts in West Virginia also consider: “(1) the likelihood of irreparable harm to the plaintiff without the injunction; (2) the likelihood of harm to the defendant with an injunction; (3) the plaintiff's likelihood of success on the merits; and (4) the public interest.”[10] The Court focused its analysis on whether the plaintiffs were likely to succeed on their constitutional claims and briefly considered the harm to the plaintiffs should the law take effect.[11]

1. Speech and Associational Rights

The Court determined that the plaintiffs were unlikely to succeed on their claim that the Act violates their speech and associational rights by forcing them to divert resources to other methods of collecting dues.[12] The Court explained that a number of federal appellate courts have rejected similar arguments, reasoning that such laws are facially neutral and do not prohibit unions or their members from espousing their views.[13] The Court also pointed to its decision in Morrisey v. W. Va. AFL-CIO, in which a right-to-work law did not impair unions from associating with employees because the law did not “discourage or prevent labor organizations from soliciting workers to join their organization” or “facilitate retaliation upon . . . union members.”[14] The Court concluded that the Act “similarly poses little threat” to the plaintiffs’ free speech or associational rights.[15]

 2. Equal Rights

The Court held that the plaintiffs would not likely succeed on their claim that the Act violates equal protection by treating unions differently than other entities.[16] The Court explained that “numerous courts have held that prohibitions on union payroll deductions are subject only to rational basis review because ‘there is no constitutional right to payroll deductions.’”[17] The Court then concluded that the Act likely passes rational basis review because the state has “a legitimate interest in avoiding the slippery slope of providing any automatic payroll deduction that an employee may request.”[18] Further, the Court reasoned, given the Supreme Court’s recent pronouncement “that public-sector agency shop arrangements violate the First Amendment,” it is rational for the state to avoid acting as an intermediary between unions and union members in order to ensure that it does not violate an employee’s speech rights.[19] Finally, the Court rejected the argument that the Act can only be explained by legislative animus towards unions, relying on a decision by the Supreme Court of Iowa that a similar law “reflects lawful policy choices by the legislature.”[20]

3. Contract Clause

The Court concluded the plaintiffs were unlikely to prevail on their contract clause claim because they did not establish that the Act would impair a contract.[21] The Court noted the Act does not apply to existing collective bargaining agreements.[22] The Court also found that a memorandum of agreement between a county school board and two education organizations regarding auto draft of dues payments did not impair a contract because there was no evidence the school board agreed to the memorandum.[23] The Court similarly rejected the plaintiffs’ reliance on blank membership applications and affidavits from public employees because they did not provide specific information about any agreement with the state.[24]

4. Irreperable Harm

The Court briefly addressed whether the plaintiffs established irreparable harm, finding the evidence of irreparable harm “thin, at best.”[25] The Court noted that one plaintiff organization had already successfully transitioned thirty percent of its membership to alternative means of paying dues and that another organization was looking into alternative payment mechanisms.[26] The Court also rejected the plaintiffs’ affidavits from union members who viewed the paycheck deductions as “a convenience,” explaining that ending a convenience does not establish irreparable harm.[27]

The Dissent

In dissent, Justice Hutchison, joined by Justice Wooton, expressed that although he does not hold an opinion on whether the plaintiffs can prevail on the merits, he found it troubling that the majority effectively decided the merits on a limited record.[28] Even though the Court remanded the case to the circuit court, Justice Hutchison thought the majority in effect “so completely resolved the underlying constitutional issues that it renders such remand nothing but a perfunctory exercise.”[29] In his view, the question of whether the plaintiffs stated a viable cause of action should have been decided on a motion to dismiss rather than in the context of a preliminary injunction.[30] Justice Hutchison further suggested that the state should have sought rehearing in the circuit court rather than resorting to an interlocutory appeal of the preliminary injunction order.[31]

Conclusion

The West Virginia Supreme Court of Appeals’ decision adds to the jurisprudence that payroll deduction policies do not impair the speech and associational rights of unions. The case could impact challenges to such statutes in other states as well as other cases regarding unions’ free speech and associational rights. 


[1]Justice v. W. Va. AFL-CIO, 866 S.E.2d 613, 616 (W. Va. 2021). The state’s intermediate court of appeals will not open until spring 2022.
[2] Id. at 629 (Hutchison, J., dissenting). 
[3] Id. at 617 n.3.
[4] Id. at 617.
[5] Id. at 618.
[6] Id. 
[7] Id.
[8] Id. at 617 & n.1.
[9] Id. at 620 (quoting Syl. Pt. 4, State v. Baker, 164 S.E. 154 (W. Va. 1932)).
[10] Id. (quoting Jefferson County Bd. of Educ. v. Jefferson Cnty. Educ. Ass’n, 393 S.E.2d 653, 662 (W. Va. 1990)).
[11] Id.
[12] Id. at 621-22
[13] Id. at 621
[14] Id. at 622 (citing Morrisey v. West Virginia AFL-CIO, 842 S.E.2d 455, 476 (W. Va. 2020)) (internal quotations omitted).
[15] Id.
[16] Id.
[17] Id. at 623 (quoting S.C. Educ. Ass’n v. Campbell, 883 F.2d 1251, 1256 (4th Cir. 1989)).
[18] Id. at 624 (discussing City of Charlotte v. Local 660, Int’l Ass’n of Firefighters, 426 U.S. 283, 286 (1976)).
[19] Id. at 625 (quoting Janus v. Am. Fed. of State, Cnty., and Mun. Emp., 138 S. Ct. 2448, 2478 (2018))
[20] Id. (quoting Iowa State Educ. Ass’n v. State, 928 N.W.2d 11, 19–20 (Iowa 2019)) (internal quotations omitted). 
[21] Id. at 626.
[22] Id.
[23] Id. at 626-27.
[24] Id. at 627.
[25] Id. at 628.
[26] Id.
[27] Id.
[28] Id. at 630 (Hutchison, J., dissenting).
[29] Id. at 629-30 (quoting Morrisey v. West Virginia AFL-CIO, 804 S.E.2d 883, 896 (W. Va. 2017) (Workman, J., concurring in part and dissenting in part)).
[30] Id. at 630
[31] Id.

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