State Supreme Court issues stay in controversial case about state's right-to-work law

By Chris Dickerson | Mar 29, 2019

CHARLESTON — The state Supreme Court has issued a stay in a 2016 right-to-work case.

The stay, granted March 29, will keep a recent ruling by Kanawha Circuit Judge Jennifer Bailey from becoming law for now.

West Virginia Attorney General Patrick Morrisey's office had filed a motion seeking the stay March 27 after filing a notice of appeal of Bailey's Feb. 27 ruling. She had ruled major parts of the state’s 2016 right-to-work law are illegal.

The law went into effect July 1, 2016. Shortly after that, Bailey 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.”

In the AG's motion for a stay, attorneys wrote, “Allowing the circuit court’s order to take effect would engender confusion among employees, unions and employers as to the appropriate legal framework for negotiating collective bargaining agreements while this appeal is pending.”

The president of the state AFL-CIO said he was not surprised by the court's stay.

“Although we were opposed, we are not surprised by the state Supreme Court’s decision to extend the stay of the circuit court order," Josh Sword said in a tweet. "We look forward to the next step of this process in our quest to protect our property rights and our liberties under the state’s Constitution."

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.

The big 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.”

Since it first heard the case in 2017, the makeup of the state Supreme Court has changed dramatically.

Gone are former Justices Robin Jean Davis (who retired last year), Menis Ketchum (who pleaded guilty to a federal wire fraud charge and retired) and Allen Loughry (who was convicted on 10 federal counts of wire fraud, mail fraud and lying to federal agents).

Only current Chief Justice Beth Walker and Justice Margaret Workman remain on the bench from that time. Walker ruled for the majority in 2017, and Workman dissented in part and concurred in part. Joining them on the current court are Tim Armstead, Evan Jenkins and John Hutchison.

Armstead, who was Speaker of the state House of Delegates when the right-to-work law was passed in 2016, was disqualified from participating in the stay opinion.

Representing the AG's office in its Motion for Stay are Solicitor General Lindsay S. See and Assistant Attorney General Zachary A. Viglianco. The AFL-CIO is represented by Morgantown attorneys Vincent Trivelli and Robert M. Bastress Jr., and Gov. Jim Justice is represented by John D. Hoblitzell III of Kay Casto & Chaney's Charleston office.

West Virginia Supreme Court of Appeals case number 19-0298

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AFL-CIO Kanawha Circuit Court Kay Casto & Chaney PLLC West Virginia Attorney General West Virginia Supreme Court of Appeals

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