CHARLESTON, W.Va. — The state Attorney General’s office is asking the state Supreme Court to overrule a preliminary injunction over the right-to-work law passed in last year’s legislative session.
Attorney General Patrick Morrisey’s office filed a petition today with the state Supreme Court. The Attorney General also has sought an expedited ruling from the court.
The office contends Kanawha Circuit Judge Jennifer Bailey erred in issuing the injunction.
“The negative impact caused by this injunction demands immediate relief,” Morrisey stated in a release about the filing.
“I urge the state Supreme Court to consider our arguments and reach an expedited decision so as to eliminate confusion and mitigate damage to our state.”
Right-to-work legislation was such a priority during the 2016 session that it was officially Senate Bill 1. It was introduced in the Senate and sent to Judiciary on the very first day of the that year’s legislative session, Jan. 13.
It passed both houses and was sent to then-Gov. Earl Ray Tomblin by Feb. 8. He swiftly vetoed it Feb. 11, and both houses overrode his veto the very next day.
The law went into effect July 1. Judge Bailey approved a temporary injunction supported by unions on August 10.
The overriding issue is whether employees who join a workplace represented by a union have to pay some form of dues, whether they embrace union representation or not.
The unions argue that employees who don’t would receive the benefits of collective bargaining without providing financial support to pay for those activities. In other words, they say, the right-to-work law takes union property.
Since Judge Bailey originally ordered the preliminary injunction, the law has been in limbo.
On Feb. 23, Bailey filed a written version of the preliminary injunction.
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?”
Morrisey’s office claims the delay in implementation has caused damage to the state — along with confusion among employees, unions and employers who lack guidance about how to lawfully negotiate collective bargaining agreements.
“The circuit court erred in preliminarily enjoining Senate Bill 1 of the 2016 Legislative Session (“the Act”) because Respondents cannot show a likelihood of success, or even a substantial question, on the merits of their claims, Respondents have failed to show any irreparable harm. and both the State and the public will be irreparably harmed by the injunction,” according to the petition filed by state Solicitor General Elbert Lin.
The state Legislature has been working this session to clean up some aspects of the original bill.
The amended right-to-work bill, now in the House, clarifies 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.
Those are secondary issues compared to the constitutional questions about whether right-to-work amounts to a “taking” of union property.
In an interview after a Senate floor session in late February, Senate Judiciary Chairman Charles 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 then. “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.”
State AFL-CIO President Josh Sword, also speaking in late February, 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.”