H. B. 2331
(By Delegate Overington)
[Introduced January 21, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend chapter twenty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article fourteen, relating
to providing that the citizens of each county may determine
by election, whether an employer can condition a person's
employment on his or her membership in a labor organization;
providing for civil remedies; duties of prosecuting
attorneys; procedure for election and effective date
thereafter; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article fourteen, to
read as follows:
ARTICLE 14. COUNTY EMPLOYMENT FREEDOM ACT.
§21-14-1. Public policy.
It is hereby declared to be the public policy of the state
of West Virginia that the citizens of each county shall have the
right to determine for themselves, in an election held especially
for that purpose, whether an employer can condition a person's
employment or continuation of employment on membership or
nonmembership in any labor organization.
§21-14-2. Definitions.
As used in this article:
(a) "Employer" means all persons, firms, corporations,
associations, organizations or entities that employ one or more
persons in any capacity, including the state of West Virginia,
its agencies, its governmental subdivisions, its counties,
municipalities, county boards of education and every governmental
board, commission, instrumentality, political subdivision or
other unit whose governing body exercises governmental powers of
any kind. Employers of agricultural laborers are also included
under this definition.
(b) "Labor organization" means any organization, agency or
employee representation committee or plan, of any kind, type or
nature, which exists for the purpose, in whole or in part, of
representing employees in their relationship with employers concerning grievances, labor disputes, wages, rates of pay, hours
of employment, conditions of employment or any other matters of
interest to the employee.
(c) "Person" includes any natural person, a corporation,
association, company, firm or labor organization.
§21-14-3. Employer may not require membership in labor
organization as condition of employment; wage deductions.
In each county wherein a majority of the voters have
determined that the provisions of this article apply:
(a) No employer may require any person, as a condition of
employment in such county, to become or remain a member of any
labor organization, or to pay any dues, fees, assessments or
other sums of money of any kind to any labor organization.
(b) No employer may require any person, as a condition of
employment or continuation of employment in such county, to
abstain or refrain from membership in any labor organization.
(c) No employer may require any person to be referred by,
recommended by or approved by any labor organization as a
condition of employment or continuation of employment in such
county.
(d) No employer may deduct from the wages, earnings or
compensation of any employee employed in such county any dues, fees, assessments or other charges, to be held for or paid over
to any labor organization, unless the employer has first received
a written authorization for such deduction, signed by the
employee, which authorization shall be revocable by the employee
at any time by giving the employer written notice of such
revocation thirty days in advance of its effective date. Every
employer who receives such an authorization from an employee
shall promptly notify that employee in writing that he or she may
revoke his or her authorization at any time by giving the
employer thirty days written notice.
§21-14-4. Agreements in violation of article unenforceable.
Any agreement, understanding or practice, written or oral,
between an employer and a labor organization in violation of any
provision of this article is hereby declared to be unlawful, void
and unenforceable.
§21-14-5. Criminal offenses; penalties.
Any person, employer, labor organization or agent or
representative of an employer or labor organization, who directly
or indirectly imposes or attempts to impose, upon a person any
requirement prohibited by this article, is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined, for
each offense, not more than one thousand dollars or imprisoned in
the county jail for not more than ninety days, or both fined and imprisoned.
§21-14-6. Civil remedies.
(a) Any employer who discriminates against or denies
employment in any county to any person on account of membership
or nonmembership in any labor organization, or any labor
organization which encourages, requests, requires or participates
in any way in the discrimination against or denial of employment
in such county to any person, whether acting separately or in
concert, shall be liable to that person, whether acting
separately or in concert, for any damages that person may have
sustained, and the costs of suit, including reasonable attorneys'
fees. If such employer, other person, firm, corporation, labor
organization or association acted willfully and with malice or
reckless indifference to the rights of others, punitive damages
may be assessed against such employer, other person, firm,
corporation, labor organization or association.
(b) Any person sustaining injury as a result of any violation
or threatened violation of the provisions of this section shall
be entitled to injunctive relief against any and all violators or
persons threatening violation.
(c) These remedies shall be independent of, and in addition
to, the penalties and remedies prescribed in other provisions of
this article.
§21-14-7. Duties of prosecuting attorneys.
The office of the prosecuting attorney of each county shall
investigate any complaints of violation of this article,
prosecute all persons violating any of its provisions and use all
means at its command to ensure effective enforcement of the
provisions of this article.
§21-14-8. Local option.
(a) The county commission of the county shall hold an
election on the question of whether an employer can condition a
person's employment on his or her membership in a labor
organization within the county. The election shall be determined
by a vote of the resident voters of the county in which all
affected employers are situate.
Any local option election to determine whether an employer can
condition a person's employment on his or her being a member of
a labor organization within the county shall be in accordance
with the procedures as may be adopted by the division. The local
option election may be held in conjunction with a primary or
general election, or at a special election. Approval or
disapproval shall be by a majority of the voters casting votes on
the question of whether an employer can condition a person's
employment on membership in a labor organization.
If a majority has voted "no", another election on the issue
may not be held for a period of one hundred four weeks. If a
majority has voted "yes" another local option election may not be held for a period of five years. A local option election may
thereafter be held if a written petition of qualified voters
residing within the county equal to at least five percent of the
number of persons who were registered to vote in the next
preceding general election is received by the county commission
of the county in which the issue is raised. The petition may be
in any number of counterparts. The aforesaid election shall take
place at the next primary or general election which is scheduled
to take place at least ninety days following receipt by the
county commission of the petition required by this subsection:
Provided, That no issue shall be placed on the ballot until all
statutory notice requirements have been met: Provided, however,
That no subsequent disapproval shall take effect until after the
expiration of the five-year licensing period in effect at the
time of the referendum.
(b) No local law or regulation providing any penalty,
disability, restriction, regulation or prohibition for failing to
condition employment upon membership in a labor organization may
be enacted, and the provisions of this article preempt all
regulations, rules, ordinances and laws of any county or
municipality in conflict herewith.
(c) Except as specifically provided in this article, no other
fees or taxes may be imposed by a local governing body.
§21-14-9. Application of article to contracts.
The provisions of this article do not apply to any lawful
contract in force on the date the provisions take effect, but
they apply in all respects to contracts entered into thereafter
and to any renewal or extension of an existing contract.
NOTE: The purpose of this bill is to allow the citizens of
each county to determine, by election, whether they want to enact
a "right-to-work law" in their respective counties.
This article is new; therefore, strike-throughs and
underscoring have been omitted.