Member Article

The Supreme Court of Appeals of West Virginia upheld the constitutionality of the Workplace Freedom Act in a 5-0 decision, with one justice dissenting in part. The decision removes the cloud over the state’s right-to-work law, which was passed in 2016 but was enjoined by a trial court for a substantial period of time, determined to be unconstitutional, in part, by the same trial court and now takes full effect.

The majority opinion recognizes, even though right-to-work laws have existed for over 70 years, “[T]he unions have not directed us to any federal or state appellate court that, in over seven decades, has struck down [a right-to-work] law.”

The AFL-CIO, among other plaintiffs, challenged the state right-to-work law, arguing that it impermissibly restricted the association rights of unions under the state constitution, required an unconstitutional “taking” of unions’ property, and infringed upon the liberty interests of unions under the West Virginia Constitution. The court rejected all arguments.

The court rejected the unions’ argument that the right-to-work law denies a union the ability to compel non-members to pay the union dues and thereby infringes upon a union’s right to freely associate. Rather, the court wrote the law “operates to protect the right of workers to not be forced to associate against their will.” The court relied upon United States Supreme Court precedent from 2018, which held an Illinois statute that authorized public-sector unions to assess compelled dues violated the employees’ First Amendment rights. The West Virginia Supreme Court wrote, “By striking down the Illinois compelled-dues statute, the Court highlighted the importance of protecting the rights of workers to be free from financially supporting labor organizations whose views they do not share. The fact that forcing private workers to subsidize a labor organization may not implicate matters of substantial public concern at the same level as the public workers at issue in Janus, we find this distinction of no moment. Simply put, [t]he differences between public – and private – sector collective bargaining do not translate into differences in First Amendment rights.”

Similarly, the court rejected the unions’ argument that the right-to-work law forced unions to perform valuable services for non-dues-paying non-members. The unions argued that by compelling them to financially support “free-riders,” the law takes the union’s money to assist employees who pay nothing to the union. The court concluded that nothing in the right-to-work law required unions to represent non-dues-paying employees. Rather, federal law requires unions to represent employees when the union voluntarily chooses to represent all employees exclusively, and that is the union’s choice.

Finally, the court rejected the union’s argument that unions’ liberty interests were infringed because they were forced to represent non-dues-paying employees employing similar analysis.

Two justices issued separate opinions. Justice John Hutchison concurred in the majority opinion, recognizing that as a justice, it was his duty to uphold the law and the legislature had authority to enact the law. However, Justice Hutchinson wrote that right-to-work laws undermine unions and the wrongs committed by employers, including low wages, unsanitary conditions, child labor, nepotism, and a host of others “will more likely than not rise again.”

Justice Margaret Workman also issued a separate opinion, concurring in part but dissenting in part. Justice Workman, expressly citing Bob Dylan, wrote, “… 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.” While recognizing the propriety of the majority ruling, Justice Workman wrote she believes the Janus decision is wrong and, regarding the right-to-work law, “I strongly believe that [it] will ultimately lead to the slow death of the unions which built this state.”

The decision remands the case to the Circuit Court of Kanawha County with instruction to enter summary judgment for the State of West Virginia and against the unions.

Mark A. Carter is the Labor practice group chair and is located in the Charleston, West Virginia office.