W.Va. State Supreme Court Hears Arguments on Right-to-Work Law

CHARLESTON — Nearly four years after it first passed the West Virginia Legislature, the state Supreme Court of Appeals heard arguments Wednesday on the Right to Work law.

Justices Margaret Workman, Beth Walker, Evan Jenkins and John Hutchison asked questions of attorneys representing the state and the West Virginia AFL-CIO Wednesday.

Chief Justice Tim Armstead, who was the Republican speaker of the House of Delegates when the law passed, recused himself. He was replaced by Cabell County Circuit Court Judge Gregory Howard.

The state, represented by Solicitor General Lindsay See, argued that 27 states already have Right to Work laws. Kentucky, West Virginia’s neighbor and the most recent state to enact Right to Work legislation, was able to successfully defend its law in court.

“This court was persuaded by the fact that the federal Supreme Court has rejected an argument that is essentially identical to the one respondent raises here,” See said. “No federal or state appellate court has ever struck down one of these Right to Work laws. This court should finish what it started in 2017. It should bring this long litigation to an end.”

The U.S. Supreme Court ruled in the 2018 Janus v. State, County and Municipal Employees decision 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. See said the law only affects new union contracts going forward and is not retroactive.

The AFL-CIO, represented by Bob Bastress, argued Right to Work would allow employees to receive services from the union without paying for those services, an illegal taking. Bastress said Right to Work would negatively hinder the ability of unions to recruit and retain members.

“We’re not insisting that there’s any limitation on people’s ability to join unions or not to join any unions or whatever. It’s the impact on the union’s ability to attract and retain members,” Bastress said.

Bastress said the U.S. Supreme Court Janus decision was a game-changer in how the courts interpret labor law, but didn’t believe the case applied to the state.

“There’s no question that there’s been a major development in labor law since we had the preliminary injunction decision,” Bastress said. “I do not think Janus has any application to the private sector. The calculus in that case was totally different.”

See disagreed, arguing the Janus decision is relevant to the state defense of the law. See said going forward, unions concerned about representing non-union members won’t have to as long as they don’t seek to be the exclusive bargainer in the workplace.

“The ability to participate in the federal labor law system that gives the incredibly important power of exclusive bargaining status, That’s voluntary,” See said. “No union is ever compelled to participate in that system. And if there was any doubt about that, that’s been conclusively resolved by the federal Supreme Court in the Janus decision.”

Senate Bill 1, the West Virginia Workplace Freedom Act, was passed by the Legislature Feb. 5, 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 in future union contracts. The bill was vetoed by former Gov. Earl Ray Tomblin six days later, but the Legislature successfully overrode the veto.

The Workplace Freedom Act took effect May 5, 2016, and the AFL-CIO filed a lawsuit in Kanawha County Circuit Court June 27, where the case sat for years. Kanawha County Circuit Court Judge Jennifer Bailey issued an injunction Aug. 10, 2016, to block the law, but didn’t issue a written ruling on her reasoning for the injunction until Feb. 22, 2017.

The state Supreme Court overturned the injunction a month later and chided Bailey for taking so long on the case. Still, Bailey didn’t officially rule on the case until Feb. 27, 2019, in favor of the AFL-CIO and overturned the law. State Attorney General Patrick Morrisey appealed the decision to the state Supreme Court and the lower court decision was stayed in April. Parties to the law suit and friends of the court filed briefs with the High Court over the summer.

Jenkins, when questioning Bastress, said the decision by Bailey wasn’t focused on the membership issues, but on the affect on unions of not being able to collect dues from non-members.

“What has changed is that the Janus case has been ruled,” Jenkins said. “At the outset, you said this was about retaining and recruiting members. And as outlined in the lower court’s opinion, it’s about money. (Bailey) specifically said this is about the financial well-being of the union.”

“I feel a little bit like deja vu here, because this case was taken up a couple of years ago and decided,” said Walker. “It doesn’t appear to me that anything has changed in the law. And in fact, we have the Janice Case that’s come out since then.”

Josh Sword, president of the state AFL-CIO, said he was hopeful that the state Supreme Court would weigh all the arguments and discussions and make the right decision.

“We’re pleased with how the day went,” Sword said. “Judge Bailey gave us a good starting point. We believe the merits of our argument are strong and just. If the justices review the merits of (Bailey’s) opinion, then we believe at the end of the day we’ll have a favorable opinion. If not, we’ll turn our attention to the election and try to undo this unjust bill that way.”


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