CHARLESTON, W.Va. — A year after passing right-to-work legislation and six months after a circuit judge ordered a preliminary injunction, the state Legislature is still hammering out kinks in the bill.

The state Senate on Monday passed a bill on a 22-12 vote that changes some parts of the original “Workplace Freedom Act.”

The bill, which goes to the House, cleans up sections of the act that appeared to place construction unions off limits. It also removes a definitions section that could be interpreted to apply the law only to public employees.

MORE: Read the amended right-to-work bill.

As the cleanup bill has wound its way through the legislative process, debate has focused on whether it’s kosher for the Legislature to tinker with it while the original version is being reviewed by the court system.

Even if some sections are clarified, there’s still an overriding constitutional issue for the courts to decide. State labor unions said the act constitutes an illegal “taking,” in the sense that it could discourage workers from seeking union representation.

Today, state AFL-CIO President Josh Sword said it’s silly that the Legislature finds itself in this position.

“Last year, their keynote piece of legislation, was Senate Bill 1, and they rushed that thing through. They took about half of a session to get that through because it was a very controversial piece of legislation,” said Sword, who is a scheduled guest to talk about labor issues Wednesday on “Talkline” with Hoppy Kercheval.

“So they pass it, we immediately go to court to challenge the constitutionality of it. So we’re in court right now, the judge is expected to rule any day on the constitutionality of right-to-work. Meanwhile, they realize that their keynote piece of legislation from last year was sloppy at best, and now they’re trying to fix it and clean it up because they really had no idea what they were doing.”

Sword said altering the legislation while it’s under legal scrutiny amounts to the legislative branch overstepping its bounds.

“Last time I checked, there were still three separate-but-equal branches of government, and what you have here is the legislative branch trying to overstep and interfere with the judicial branch of government and to me, it’s asinine.”

Senator Mike Romano (D – Harrison)

Senator Mike Romano, D-Harrison expressed that point of view on the Senate floor on Monday.

“I think it’s a bad precedent for us to change laws to affect court cases,” Romano said. “We go in and change the playing field after the courts have spent enormous time and resources to come to an answer.

“Surely there will be further decisions subject to appeal But when we interject ourselves to the third branch of government we make a mistake morally and constitutionally.”

Judge Jennifer Bailey

In the written version of the preliminary injunction released last Friday, Judge Jennifer Bailey questioned why the original legislation would have had a section that seems to exempt the building and construction industry.

“The ambiguity of this sentence is such that an entire industry, not identified by any definition or reference, has no certainty of understanding whether the so-called RTW legislation applies to their collective bargaining negotiations or agreements,” Bailey wrote.

MORE: Read the preliminary injunction on the right-to-work bill.

On the broader constitutional issues, Bailey suggested that workers who receive the benefits of a union without having to participate would have little incentive to pay for such services. She said the potential harm to the unions’ interest necessitated the preliminary injunction until a broader ruling is made.

“If, as prescribed by S.B. 1, employees can obtain the services of a union to negotiate and administer a contract without having to pay either union dues or the agency fees, they would — naturally and predictably — be seriously discouraged from joining a union,” Bailey wrote.

“Why, the employee would ask, should I pay for something that the law requires be made available to me for nothing?”

Charles Trump, chairman of the Senate Judiciary Committee, spoke on the Senate floor Monday about the bill. Trump was responding to a written version of the preliminary injunction released Friday.

Trump contended that Bailey should have paid more heed to precedent that concludes unions are not required to represent all workers at a work location. That would mean, Trump contended, workers don’t have to be represented by unions even if most of their co-workers are.

“The  union’s obligation to represent all employees in a bargaining unit is optional,” Trump said. “It’s a legal fiction.”

Trump added, “Unions choose to try to negotiate for an entire class of employees. It makes perfect sense why they want to do it that way.”

In an interview after the floor session, Trump said the “takings” aspect of the issue seems destined for the state Supreme Court.

“I would imagine that would be however it turns out,” Trump said. “I would suspect whoever doesn’t prevail in circuit court will seek to have it reviewed in the Supreme Court. I would be shocked if it were otherwise.”

Sword said the Legislature would face an uphill battle trying to change the other part of the union argument. He agreed the constitutional aspect of the argument isn’t a matter the Legislature could alter.

“If we get a favorable ruling on the central part of our argument, which is that it’s an illegal taking of union and member assets then they can’t pass legislation to change that,” Sword said. “They would actually have to try to change our state’s constitution to deal with that.”

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