Supreme Court sets date to hear right-to-work law arguments

By Kyla Asbury | May 26, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has set a date to hear arguments regarding West Virginia’s right-to-work law.


The court will hear arguments from Attorney General Patrick Morrisey and West Virginia AFL-CIO on Sept. 5.


In his May 5 reply brief, Morrisey wrote the respondents unsurprisingly mischaracterized the federal regulatory regime that governs unions, because a proper understanding of federal law dooms each of their constitutional challenges to West Virginia’s right-to-work law.


Morrisey wrote federal law provides unions with a choice to represent only members or to serve as the exclusive agent of a bargaining unit.


“The latter choice confers certain benefits but also imposes certain known conditions,” he wrote.


Morrisey wrote by accepting the benefits that come with exclusive agency, the respondents also voluntarily accept that their ability to collect fees from nonmembers is strictly a matter of state legislative grace.


“States like West Virginia are expressly permitted under federal law to retract that grace through right-to-work statutes like the act,” he wrote.


Morrisey contends that the respondents have failed to persuasively defend the circuit court’s wrongly-issued preliminary injunction.


“In the face of well-established principles of federal law, respondents have offered no meaningful response that shows a reasonable likelihood of success on the merits of their claims,” Morrisey wrote. “They have also failed to show that the balance of equalities warrants injunctive relief, especially given that the circuit court’s finding of irreparable harm to respondents was based solely on the circular assumption that the act is unconstitutional.”


Morrisey said the Supreme Court should conclude that the respondents have not satisfied the criteria for preliminary injunctive relief and vacate the injunction by the circuit court.


The Legislature passed Senate Bill 1 in February 2016, overriding a veto by then-Gov. Earl Ray Tomblin.


The West Virginia Workplace Freedom Act went into effect July 1.


The law would have prohibited requiring workers being union members or paying union dues in order to be employed.


In August, Kanawha Circuit Judge Jennifer Bailey issued a preliminary injunction.


The respondents wrote in their brief that the law affects older laws allowing labor unions to negotiate contracts containing a union security clause, which requires employees to maintain union membership or pay dues in order to have a job.


Vincent Trivelli and Robert Bastress Jr. are representing the respondents.


W.Va. Supreme Court of Appeals case number: 17-0187

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