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State Supreme Court Upholds Right to Work Law After 5-year-long Court Battle

CHARLESTON — After a nearly five-year battle, the West Virginia Supreme Court of Appeals ruled Tuesday that state’s Right to Work law allowing people to opt out of union dues was legal.

In a decision written by Justice Evan Jenkins, the court ruled that the case originally brought by the West Virginia AFL-CIO should be remanded to the Kanawha County Circuit Court for summary judgement in favor of the state.

“States are expressly authorized under federal law…to prohibit labor organizations from collecting compelled dues from workers as a condition of employment or as a condition for the continuation of employment,” Jenkins wrote. “The West Virginia Legislature has exercised this authority by enactment of the Workplace Freedom Act with the clear legislative intent to protect the rights of West Virginia workers to choose for themselves whether to associate.”

The Supreme Court first heard the case arguments in the case on Jan. 15. The state was represented by Attorney General Patrick Morrisey, while the AFL-CIO was represented by Bob Bastress, a West Virginia University law professor. Jenkins wrote the majority opinion. Chief Justice Tim Armstead, who was speaker of the House of Delegates when Right to Work was passed, recused himself from the case.

In his written opinion, Jenkins said the West Virginia Workplace Freedom Act, passed by the Legislature on Feb. 5, 2016, does not violate the rights of workers or the union.

The law 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.

“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,” Jenkins wrote.

Union representatives argued in court that the Workplace Freedom Act would allow employees to receive services from the union without paying for those services, which they called an illegal taking. They said Right to Work would negatively hinder the ability of unions to recruit and retain members. Jenkins did not agree.

“The act also does not take property,” Jenkins wrote. “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…labor unions that are obligated to provide this fair representation receive due compensation in the form of valuable benefits provided under federal law. These benefits include their designation as the exclusive bargaining unit and the bargaining power that accompanies that designation.”

Justice John Hutchison, a former Raleigh County Circuit Court judge who was appointed to the Supreme Court in 2018 to fill the seat of former justice Allen Loughry, wrote a concurring opinion.

Hutchison, who is on the June 9 ballot for the special election to fill Loughry’s remaining term, said the Legislature has the authority to pass Right to Work laws.

“…The gist of the majority opinion is true: what the Legislature gives, the Legislature can constitutionally take away,” Hutchison wrote.

“No other court in America has found a right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different.”

Hutchison pointed to the benefits many workers receive today because of union efforts, such as improvements in safety and productivity, the 40-hour work week and weekends off, paid vacation and holidays, the eight-hour work day and overtime pay. Hutchison said even though Right to Work was legal, he personally was against it.

“Unions rose and grew to combat the wrongs that employees faced in the workplace,” Hutchison wrote. “Right-to-work laws serve to undermine unions, and no matter how optimistic I am, my years as a judge have taught me this: those wrongs will more likely than not rise again. Much like a democracy, only collective action by a majority of the people, working together, can combat wrongs. A house divided against itself will fall.”

Justice Margaret Workman, who is retiring at the end of 2020, wrote an opinion concurring in part and dissenting in part. While she believes the decision of the court was correct, Workman said it was because of the 2018 decision of the U.S. Supreme Court in Janus v. State, County and Municipal Employees, which ruled 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.

“I believe that Janus was wrongly decided,” Workman wrote. “However, I also believe that although Janus was a decision involving only public employees’ unions, you don’t need a weatherman to know which way the wind blows; there is no principled basis on which to conclude that under the legal analysis upon which Janus is based, a prohibition on the collection of agency fees is constitutional for public employees’ unions but unconstitutional for private employees’ unions.”

In a statement Tuesday, Attorney General Patrick Morrisey praised the state Supreme Court’s decision and thanked it for bringing clarity to an issue that has taken years to work its way through the courts.

“This is a major victory for worker choice,” Morrisey said. “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. 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.”

The AFL-CIO filed a lawsuit against the Workplace Freedom Act in Kanawha County Circuit Court in 2016 shortly after the law took effect. 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.

Bailey ruled in favor of the AFL-CIO and overturned the law on Feb. 27, 2019, though the state was granted partial summary judgement as well. Morrisey appealed the decision to the state Supreme Court and the lower court decision was stayed in April two months later. Parties to the lawsuit and friends of the court filed briefs with the high court last summer.

A statement from the AFL-CIO was not immediately.

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