H. B. 2084


(By Delegate Overington)

[Introduced February 14, 2001; 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 the 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 the 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 the county.
(d) No employer may deduct from the wages, earnings or compensation of any employee employed in the 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 the deduction, signed by the employee, which authorization shall be revocable by the employee at any time by giving the employer written notice of the revocation thirty days in advance of its effective date. Every employer who receives 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 the 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 the 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.