CHARLESTON – The state Supreme Court has ruled the state’s right-to-work law is valid, voiding a circuit court ruling that had declared it unconstitutional.
The Justices, in an April 21 opinion, reversed and remanded a 2017 opinion by Kanawha Circuit Judge Jennifer Bailey that said the Workplace Freedom Act unconstitutionally infringes upon the rights of labor unions to associate, as well as their liberty and property rights.
“We applaud the state Supreme Court of Appeals for upholding the rule of law with an opinion that finally brings clarity on this important question,” said state Attorney General Patrick Morrisey, whose office argued on behalf of the state before the court during January oral arguments. “This is a major victory for worker choice. This is not a pro-union or anti-union decision, it is a ruling that will protect workers, give them a greater voice and make unions stronger in the end.”
Jenkins
In the 69-page ruling, Justice Evan Jenkins spells out the reasoning.
“We conclude that the act does not violate constitutional rights of association, property, or liberty,” Jenkins wrote. “Therefore, we reverse the circuit court’s contrary rulings and remand this case for summary judgment in favor of the state consistent with this decision.”
Jenkins served as acting Chief Justice for the case because Chief Justice Tim Armstead recused himself from hearing the matter because he was Speaker of the House in 2016.
“The Act does not violate association rights,” Jenkins wrote in the majority opinion. “There simply is nothing in the Act that prevents workers from voluntarily associating with labor unions; instead, the Act operates to protect workers from being forced to associate with labor organizations they do not wish to join or fund.
“The Act also does not take property. The obligation on certain labor organizations to provide collective bargaining and grievance services to non-member workers is imposed by federal law, not the Act. Furthermore, as we have explained above, labor unions that are obligated to provide this fair representation receive due compensation in the form of valuable benefits provided under federal law.”
Jenkins wrote that these benefits include their designation as the exclusive bargaining unit and the bargaining power that accompanies that designation.
“For the same reason, the Act does not infringe on any liberty interest by prohibiting compelled dues,” he wrote. “The obligation to provide services to nonmembers is imposed on labor organizations by federal law, not the Act, and they are compensated for those services.
“In this appeal, Labor Unions have failed to present any relevant federal or state authority wherein a labor organization’s rights have been infringed by right-to-work legislation similar to that enacted by our state Legislature.”
Justice John Hutchison issued a concurring opinion, but it didn’t seem to be an overwhelming endorsement.
“The law dictates that I must concur because the gist of the majority opinion is true: what the Legislature gives, the Legislature can constitutionally take away,” he wrote. “No other court in America has found a right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different.”
Hutchison said he has studied past right-to-work challenges, including countless U.S. Supreme Court, state court and federal court cases.
“With almost clarion unity, courts repeatedly hold that legislatures may give rights to unions and can just as quickly take those rights away with constitutional impunity,” he wrote. “The (West Viginia Supreme) Court acknowledged as much in 2017, saying that ‘27 other states have adopted right to work laws similar to West Virginia’s, and the unions have not shown a single one that has been struck down by an appellate court.’
“(That Supreme) Court hinted that the unions’ lawyers needed to come up with better legal arguments.”
But, Hutchison said he doesn’t there this is a better argument.
“I now think the solution lies in the ballot box, not the courtroom,” he wrote. “Having taken a constitutional oath as a justice, it is my sworn duty to uphold the law. I am, therefore, compelled by the law and my obligations as a justice to respectfully concur with the majority opinion.
Justice Margaret Workman, who heard the case the first time around, concurred in part and dissented in part with the majority.
“I reluctantly concur in the judgment of the court, as I believe that the result in this case is compelled by the recent decision of the United States Supreme Court,” she wrote, referring to the 2018 Janus v. American Federation of State, County, and Municipal Employees Council case. “Given my judicial colleagues’ refusal to give more than a cursory nod to our unbroken line of precedents permitting – and sometimes requiring – us to ‘interpret [the West Virginia] Constitution to require higher standards of protection than afforded by comparable federal constitutional standards,’ … it is inevitable that any decision striking down the agency fee ban … would last only as long as it took for the petitioners herein to file a petition for writ of certiorari.”
Morrisey said the Supreme Court’s opinion adheres to the rule of law. His office had argued that little to nothing had changed since the Supreme Court allowed the law to take effect in 2018 after it was first passed in 2016. West Virginia became the 26th right-to-work state.
“By upholding the state’s Workplace Freedom Act, the state Supreme Court keeps with its own precedent and the unanimous agreement of every federal and state appellate court in the nation that has rejected similar claims,” he said.
Americans For Prosperity state Director Jason Huffman also praised the Supreme Court’s latest ruling.
“This is a historic day for West Virginia workers who, for too long, faced a coercive status quo that pitted their livelihood against their freedom of speech and freedom of assembly,” Huffman said. “It’s common sense that no one should be forced to hand over a portion of their paycheck to an organization with which they might disagree in order to keep their job.
“Right-to-work ends this backward practice once and for all, giving West Virginians more opportunity and power over their paychecks. We are pleased that the court rightfully chose to uphold the constitutionality of this vital protection that will help improve our state’s economic competitiveness.”
The West Virginia AFL-CIO and other unions have fought the law since it before it was enacted in 2016 by the Republican-led Legislature. Then-Gov. Earl Ray Tomblin, a Democrat, vetoed the measure, but the Legislature overrode that veto. That kicked off a court challenge.
The Workplace Freedom Act essentially says a worker may not be required to become a member of a labor organization or pay any dues or fees assessments. The unions say the law amounts to illegal taking because non-union employees would gain the benefits of contract negotiation and other benefits without having to pay. The unions also say federal law already says workers don’t have to join.
Bailey issued a preliminary injunction early in 2017. Soon, the state Supreme Court reversed that preliminary injunction, saying it stacked things against the union. But the makeup of the court was different then.
In February 2019, Bailey issued her final ruling essentially striking down the law. In March 2019, the Supreme Court issued a stay on Bailey’s order so they could hear the case.
West Virginia Supreme Court of Appeals case number 19-0298