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WV Supreme Court upholds state right-to-work law

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Ending a legal battle that stretched for nearly four years, the West Virginia Supreme Court on Tuesday upheld the constitutionality of the state’s right-to-work law.

The decision overturned a Kanawha Circuit Court ruling and rejected arguments by union representatives that the law, among other things, represents an illegal taking of union resources.

In a majority opinion authored by Justice Evan Jenkins, the court stated: “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.”

While all five justices concurred or partially concurred in the opinion — Justice Tim Armstead, who was speaker of the House of Delegates when the law was passed in 2016, recused himself and was replaced by Cabell Circuit Judge Gregory Howard — Justice Margaret Workman offered a blistering partial dissent and Justice John Hutchison said that, while the Legislature has the legal authority to take away workers’ rights, he questioned the wisdom of doing so.

“Unions rose and grew to combat the wrongs that employees faced in the workplace. 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,” Hutchison wrote in a concurring opinion. “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.”

Workman said the original circuit court ruling, which held that the right-to-work act unconstitutionally violated association rights and amounted to an illegal taking, “was absolutely correct at the time it was written in a pre-Janus world.”

She was referring to a 2018 U.S. Supreme Court decision that held that non-union workers cannot be forced to pay dues to public-sector unions, a case she argued Tuesday was “wrongfully decided” in a 5-4 decision.

“In my view, the legislation at issue was intended to sound the death knell for both public and private workers’ unions in West Virginia — nothing more and nothing less,” Workman said of the 2016 right-to-work act.

“A system wherein unions are required to provide valuable services for all members of the bargaining unit, but without compensation by the unit’s free-riders, is not sustainable in the long run, as the Legislature surely knew, and as the majority surely knows.” Workman added. “In short, the statute serves no purpose other than to thrust a dagger into the heart of labor unions by presenting them with a false choice: represent the interests of non-union members in the bargaining unit without compensation, or don’t represent the bargaining unit at all.”

Attorneys for the AFL-CIO argued that allowing “free-riders” in a union shop — employees who are not members of the union and do not pay union dues — represented an illegal taking of union resources, since unions would effectively have to represent them in collective bargaining at union expense.

In the majority opinion, Jenkins argued, “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.”

He added, “The Act does not infringe on any liberty interest by prohibiting compelled dues. 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 a statement Tuesday, Attorney General Patrick Morrisey commended the court for adhering to the rule of law.

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

The West Virginia AFL-CIO called the decision “unsurprising but still highly disappointing,” in a news release Tuesday evening.

“Circuit Judge [Jennifer] 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,” West Virginia AFL-CIO President Josh Sword said in an emailed statement. “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.”

“That this state Supreme Court, the product of scandal, corruption and an unprecedented impeachment process, would uphold such a law is very disappointing yet not at all surprising,” Sword continued.

Editor's note: This story has been updated to clarify that all five justices concurred or partially concurred with the opinion.

Reach Phil Kabler at, 304-348-1220

or follow @PhilKabler on Twitter.

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