Kanawha Circuit judge voids most of 2016 right-to-work legislation

By Chris Dickerson | Feb 28, 2019

CHARLESTON – A Kanawha Circuit judge has ruled major parts of the state’s 2016 right-to-work law are illegal.

Judge Jennifer Bailey issued her order Feb. 27. The law went into effect July 1, 2016. Shortly after that, Bailey had approved a temporary injunction that was backed by unions. In early 2017, she wrote a preliminary injunction. But that later was struck down by the state Supreme Court.

“The new law will require unions and union officials to work, to supply their valuable expertise and to provide expensive services for nothing,” Bailey wrote in her Feb. 27 order. “That is, in a word, arbitrary.”

The president of the state AFL-CIO praised Bailey’s ruling.

“Judge Bailey was right-on with her ruling,” Josh Sword said. “She made it very clear that this bill violates the West Virginia Constitutional rights of unions and individuals with regard to association, property and liberty.

“We entered into this lengthy legal challenge nearly three years ago because we knew the law violated of the rights of West Virginia workers – and we simply won’t stand for that.”

In the order, Bailey said 2016’s Senate Bill 1 violated the state Constitution’s prohibition of taking property without due process and compensation, as well as unions’ liberty interests.

“The new law will require unions and union officials to work, to supply their valuable expertise, and to provide expensive services for nothing,” Bailey wrote.

Another union official also praised Bailey’s order.

“We are very pleased with Judge Bailey’s ruling on the unconstitutional ‘Right to Work’ bill passed during the 2016 legislative session,” said Ken Hall, General Secretary-Treasurer of the International Teamsters Union and President of Teamsters Local 175.

“This proposal, led by War on Working Families champion Mitch Carmichael and then-Speaker of the House Tim Armstead, was nothing more than an attack on our wages, benefits and working conditions,” said Ken Hall, General Secretary-Treasurer of the International Teamsters Union and President of Teamsters Local 175. “We’re glad they lost. This is a win for all of West Virginia’s working families.”

The major question about the bill was whether employees who work where there is a union would have to pay dues whether they wanted union representation or not. Unions said those employees who don’t join unions would receive the benefits without paying.

Bailey wrote that union fees “essentially function as taxes on collective bargaining members for the costs of ‘legislative’ and governmental services. … It takes money from the union, and derivatively from its members, and essentially gives it to free riders.”

Bailey said the bill would harm the unions’ ability to “recruit new members and retain old ones.”

“Membership is obviously the lifeblood of any labor organization,” she wrote. “Members’ dues provide unions with nearly all of their revenues for operating expenses, and members’ commitment and participation give the organizations their capacity to represent workers effectively in dealing with employers.

“If unions cannot exact agency fees, employees would be able to receive, without any cost to them, the full benefit of the union’s services in negotiating and administering the contract. And if workers can get those services for free, they would have no incentive to join the union or remain a member.

“In fact, those who do join or stay in a union would be paying a penalty for the privilege because their dues would have to be raised to underwrite the union’s services provided to the free riders.”

State Attorney General Patrick Morrisey is looking at the order as well.

“We are reviewing the circuit court’s decision, comparing it to the Sept. 15, 2017, state Supreme Court ruling and will have more to say at the appropriate time,” AG spokesman Curtis Johnson said.

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