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labor W.Va. Supreme Court Upholds Long-argued Right to Work Law

The right-to-work law has been the centerpiece of a years-long, partisan-driven agenda by the anti-worker Republican majority in West Virginia to lower wages and benefits and eliminate workplace safety regulations.

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United Food and Commercial Workers union members rally against Virginia’s so-called right-ot-work law in the state capitol in Richmond in 2019., UFCW Local 23

A majority of West Virginia’s Supreme Court has upheld the right to work law that has been argued in the court system for years after it first passed the state’s Republican majority Legislature.

The act said people may choose to be employed in unionized workplaces without actually joining the union or paying regular union dues. Unions contended that represented a “taking” of representation without fair compensation.

Today, justices reversed a Kanawha Circuit Judge’s earlier ruling that overturned key aspects of the law. The case was remanded back to the lower court, but only to enter summary judgment on behalf of the state.

“Because we have found the Act does not infringe upon association, property, or liberty rights protected by the West Virginia Constitution, we reverse the February 27, 2019 order of the Circuit Court of Kanawha County insofar as it granted partial summary judgment in favor of the Labor Unions,” the Supreme Court’s majority wrote.

The Supreme Court heard oral arguments in mid-January in a courtroom packed with union leaders, business leaders and political figures — back a lifetime ago when people used to gather in large groups.

The case was, officially, “Patrick Morrisey, Attorney General, and the State of West Virginia v. West Virginia AFL-CIO, et al,” a dispute between the state as represented by the attorney general and the collection of labor organizations.

The unions contended that the act would allow non-union employees of companies to gain the benefits of contract negotiation and other benefits without having to pay.

The West Virginia AFL-CIO today called the ruling “unsurprising but still highly disappointing.”

“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,” stated AFL-CIO President Josh Sword.

Morrisey today praised the Supreme Court ruling.

“This is a major victory for worker choice,” the attorney general stated. “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.”

Chief Justice Tim Armstead, who was Speaker of the House of Delegates when the law passed, stepped aside. He was replaced for this case by Cabell Circuit Judge Gregory Howard. Judicial elections in West Virginia are nonpartisan, but Howard earlier served in the Legislature as a Republican.

Justice Margaret Workman concurred in part and dissented in part.

Justice John Hutchison concurred, but reserved the right to issue his own opinion.

Justice Evan Jenkins, a former legislator and congressman, wrote the opinion for the majority.

The act was filled with economic and political significance when it passed four years ago. West Virginia’s Republican-led Legislature passed the “Workplace Freedom Act” in 2016 as Senate Bill 1.

Mitch Carmichael, the current Senate president, praised the Supreme Court’s ruling.

“Today’s decision closes the book on four years of litigation,” stated Carmichael, R-Jackson. “We rejoice that the Court has come to the correct decision. We sincerely appreciate that the Court has chosen to allow the will of the Legislature, and the majority of the citizens it represents, to stand.”

Labor unions filed a complaint challenging the act four days before its July 1, 2016, effective date. The unions asked for a preliminary injunction to stop it, and there was an August 10, 2016, hearing in the courtroom of Kanawha Circuit Judge Jennifer Bailey, who announced a preliminary injunction the same day.

From there, it was a long wait.

Judge Bailey issued a written order granting the preliminary injunction on Feb. 23, 2017.

A few months after that, the Supreme Court got involved for the first time, reversing the preliminary injunction. That was a different court that included Workman and Justice Beth Walker, along with then-Chief Justice Allen Loughry and justices Menis Ketchum and Robin Davis.

The majority opinion concluded the unions were unlikely to succeed long-term and scolded Bailey for taking so long.

Bailey then issued a decision overturned key aspects of the law a little more than a year ago, leading back to the Supreme Court.

Lawyer Danielle Waltz, who represents the Workplace Coalition, a business group that advocated for passage of the law four years ago, said construction companies, manufacturers and businesses are pleased by the court’s ruling.

“We hope this final decision allows the Mountain State to see the true benefits of the legislation for years to come,” Waltz said.

The libertarian lobbying organization Americans for Prosperity-West Virginia also praised the ruling.

“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,” stated Jason Huffman, the state director.

“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.”