Briefs Filed Supporting West Virginia’s Right to Work Law

CHARLESTON — Three pro-business groups and a free-market think tank have filed friend of the court briefs in defense of West Virginia’s Right to Work law awaiting argument before the state Supreme Court of Appeals.

Two more groups also have filed a joint motion to file their own brief before the state’s highest court.

The U.S. Chamber of Commerce, the West Virginia Chamber of Commerce, the West Virginia Manufacturers Association and the Mackinac Center for Public Policy, a conservative/libertarian think tank based in Michigan, filed amicus (friend of the court) briefs last week with the Supreme Court.

In April, the Supreme Court stayed a judgment by Kanawha County Circuit Judge Jennifer Bailey, who ruled in February in favor of the West Virginia AFL-CIO. The union challenged the Right to Work law in 2017.

An injunction by Bailey to block the law was later overturned by the Supreme Court.

Senate Bill 1, the West Virginia Workplace Freedom Act, was passed by the Legislature in 2016.

The law allows employees who work in a union-ran shop to opt out of having dues and fees taken from their paychecks and paid to unions.

The AFL-CIO argued these employees received services from the union without paying for those services, an illegal taking.

The U.S. Chamber brief was filed by Elbert Lin, who was the state’s solicitor general under state Attorney General Patrick Morrisey.

In his brief, Lin argues unions don’t have to put themselves in the position of being the sole bargaining agent for all company employees.

“The lower court’s decision is predicated on an erroneous legal premise, namely, that the unions are constitutionally entitled to act as the exclusive representative for all employees in a workplace and to collect agency fees from those employees who do not wish to be union members,” Lin said.

“Indeed, the (National Labor Relations Act) specifically reserves to state the authority to pass laws prohibiting the collection of agency fees, just as the West Virginia Legislature has done,” Lin said. “The circuit court overlooked these basic principles of federal labor law in concluding, among other things, that unions barred from collecting agency fees are required to ‘expensive services for nothing.'”

The Mackinac Center, headquartered in a state that passed its own Right to Work law in 2012, pointed out in its brief that Right to Work laws have been around since 1947 with the passage of the federal Taft-Hartley Act.

“No court has found this federal labor law or its state-exercised enactments to constitute a taking,” Mackinac’s brief stated.

The state Chamber of Commerce and the Manufacturers Association cited a landmark U.S. Supreme Court Decision in 2018, Janus v. State, County and Municipal Employees, which decided that taking fees from non-union members to pay unions was a violation of the employee’s First Amendment rights under the U.S. Constitution.

“At issue in Janus was an Illinois law the requires public employees to subsidize a union even if they choose not to join the union and object to the positions the union takes in collective bargaining and related activities,” the brief stated. “The Supreme Court concluded that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize speech on matter of public concern.”

The West Virginia Chapter of Americans for Prosperity and the Cardinal Institute for West Virginia Policy, two conservative-leaning organizations that promote free market principals, June 19 filed a motion to file an amicus brief. They were joined by the National Right to Work Legal Defense Foundation on behalf of Donna Harper, an employee of the Tygart Center in Fairmont.

While Harper is not a union member, her workplace is represented by Teamsters Local 175 as the sole bargaining agent. If the state’s Right to Work law is overturned, she would have to pay union dues and fees against her will, they argue.

“She is not a member of Local 175, and does not wish to support the union financially,” the motion stated. “Without SB 1’s protection, Harper would be compelled under the current collective bargaining agreement, even as a nonmember of Local 175, to pay forced fees to Local 175 in order to keep her job at the Tygart Center. Harper wants SB 1 to be upheld, because she seeks to enjoy its freedoms and benefits.”

While the case before the Supreme Court will likely be heard by the justices through oral arguments, a spokesperson for the court said it has yet to be scheduled for a hearing. When considering the stay of the lower court decision, Justice Tim Armstead recused himself. Armstead was speaker of the House of Delegates in 2016 when the Right to Work law passed the Legislature.

AFL-CIO President Josh Sword in February celebrated Bailey’s ruling.

“Judge Bailey was right-on with her ruling,” Sword said in a statement. “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 the rights of West Virginia workers, and we simply won’t stand for that.”

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