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Reaction to Right to Work Decision Mixed, Labor Endorsement Pulled

CHARLESTON — Parties to a lawsuit to block the state’s Right to Work law had mixed reactions to the West Virginia Supreme Court of Appeals decision this week, depending on what side of the issue they fell on. The decision also caused a labor union to pull an endorsement of a Supreme Court justice.

The state Supreme Court ruled Tuesday that the West Virginia Workplace Freedom Act, a 2016 law passed by the West Virginia Legislature, was constitutional and remanded the case back to the Kanawha County Circuit Court for summary judgment in favor of the state. While there we no outright dissents with the majority of justices supporting the ruling, Justice Margaret Workman wrote a separate opinion concurring in part and dissenting in part.

The Workplace Freedom Act, which made West Virginia one of 27 Right to Work states, allows employees who work in a union shop to opt out of having dues and fees taken from their paychecks and paid to unions in future union contracts.

Senate Bill 1, the West Virginia Workplace Freedom Act, was passed by the legislature Feb. 5, 2016. The bill was vetoed by former Gov. Earl Ray Tomblin six days later, but the legislature successfully overrode the veto and the Workplace Freedom Act took effect May 5, 2016.

Senate President Mitch Carmichael, R-Jackson, was the senate majority leader when the Workplace Freedom Act first passed the legislature. In a statement Tuesday, Carmichael praised the state Supreme Court for upholding the law. Carmichael said with the uncertainty lifted, companies wishing to move manufacturing in West Virginia would be more interested in doing so.

“This ruling is a historic victory for the rule of law and for long-established judicial precedent that has been recognized throughout the American system of jurisprudence as it relates to workplace freedom,” Carmichael said. “With this cloud of legal uncertainty now lifted, our state is able to move forward and attract the kinds of manufacturing opportunities our neighboring states have seen for years. Workers in West Virginia have won a great victory and can now enjoy freedom from unwarranted workplace coercions.”

The West Virginia AFL-CIO, on behalf of several unions, filed a lawsuit against the state to block the Workplace Freedom Act in Kanawha County Circuit Court June 27, 2016. Attorneys for the AFL-CIO were successful in getting an injunction against the Right to Work law from Judge Jennifer Bailey on Aug. 10, 2016, but the Supreme Court lifted that injunction nine months later.

“Circuit Judge Bailey had rightfully ruled that the so-called ‘Right to Work’ act clearly violates the West Virginia Constitutional rights of unions and individuals with regard to the illegal taking of their property,” said Josh Sword, president of the West Virginia AFL-CIO, in a statement Tuesday. “This law has been the centerpiece of a years-long, partisan-driven agenda by the anti-worker majority to lower wages and benefits and eliminate workplace safety regulations – all in order to place corporate profits far above the health and safety of West Virginia workers, which is shameful particularly in light of the current pandemic we’re facing.”

Nearly three years after the lawsuit was filed, Judge Bailey ruled largely in favor of the AFL-CIO. Attorney General Patrick Morrisey appealed the decision, which was finally heard on Jan. 15. Several groups filed friend-of-the-court briefs in support and against the law. Americans for Prosperity and the Cardinal Institute for West Virginia Policy – two free market groups – praised the court’s decision.

“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,” said Jason Huffman, state director for AFP-West Virginia. “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 backwards practice once and for all, giving West Virginians more opportunity and power over their paychecks.”

“Workplace freedom does not stop at the doorstep of labor unions, and we were thankful the West Virginia Supreme Court of Appeals recognized the Cardinal Institute’s contribution in its final opinion on the matter,” said Garrett Ballengee, executive director of the Cardinal Institute. “Now, let us hope the state can put this issue to rest and proceed to other issues that are critical in moving West Virginia’s economy forward in a positive direction.”

The AFL-CIO lawsuit was supported by several groups, including the West Virginia Chapter of the American Civil Liberties Union and the West Virginia Employment Lawyers Association, which was represented by Samuel Petsonk. Petsonk, a candidate in the Democratic primary for attorney general, said that even with the ruling, the Supreme Court should have clarified that one-time fees for non-union members in shops where unions are the sole bargaining unit are allowed.

“If the union doesn’t even get to charge these Free Riders one thin dime, it harms not only the union but also the free-riding, non-dues-paying grievant because the union is disincentivized from handling his or her grievance,” Petsonk said. “This charge is entirely different from the ‘agency fees’ that would be assessed as a condition of the continuation of employment. The court found that those ‘agency fees’ are prohibited by the Act.”

Petsonk praised Justice Workman’s partial dissent of the decision, as well as a concurring opinion by Justice John Hutchison who is seeking election June 9 for the remaining four years of former justice Allen Loughry’s term. Hutchison supported the majority’s decision to uphold the Workplace Freedom Act, while also expressing his support for unions and opposition to Right to Work laws generally.

“I applaud Justices Hutchison and Workman for their powerful opinions upholding the independent strength of our West Virginia Constitution, and honoring the transformational contributions that union members have made to our state,” Petsonk said. “In the words of Justice Hutchison’s concurrence, ‘I now think the solution lies in the ballot box, not the courtroom.'”

The AFL-CIO did not have the same praise for Hutchison, whom they endorsed for his special election. Even though Hutchison said he opposed Right to Work and said the legislature should rescind the law, his concurring opinion made the labor endorsement untenable and they pulled their endorsement of the former Raleigh County Circuit Court judge.

“Justice Hutchison approached our organization and met with many members, seeking our endorsement of his candidacy and our support,” Sword said Wednesday. “Despite his statements both to us and in his concurring opinion that he values the work of unions, his vote to concur with the politically motivated decision in support of the state’s ‘Right to Work’ law made clear to us that he has put the interests of out-of-state corporations over the interests of West Virginia working families.”

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