The West Virginia Legislature last year passed Senate Bill One, the Workplace Freedom Act.  The Legislature overrode a veto by Governor Tomblin making West Virginia a right-to-work state. At least 28 states now have right-to-work laws.

Supporters say the law will make West Virginia a more business friendly state and protect a worker’s right not to belong to a union.  Opponents, including labor unions, argue under the law workers who do not join the union will still enjoy the benefits of union representation without paying dues.

The unions took their argument to Kanawha County Circuit Judge Jennifer Bailey, who last August issued a preliminary injunction prohibiting the law from going into effect.  That was seven months ago and we’re still waiting for some resolution.

West Virginia Attorney General Patrick Morrisey has gone to the state Supreme Court to challenge the stay.  The legal brief, crafted by state Solicitor General Elbert Lin, lays out a compelling argument for lifting the injunction.

Lin argues that the four-prong test to determine whether a stay should be issued includes the fundamental question of whether the party seeking the injunction has a likelihood of success on the merits of the case, and it’s here that the labor unions’ challenge begins to run into trouble.

West Virginia’s law is consistent with other right-to-work laws across the country and the courts have upheld their legitimacy.   In the most recent significant decision, the U.S. Court of Appeals for the 7th Circuit upheld Indiana’s right-to-work law.  Following that, a federal judge relied on the 7th Circuit’s decision to throw out a lawsuit challenging Wisconsin’s law.

The primary argument by the plaintiffs in West Virginia is that the law here constitutes an illegal taking because services provided by the union will be available to non-union members at no charge to them.  Federal law does require unions to represent all employees at a workplace, but only if the union is the exclusive bargaining agent, which the union accepts voluntarily.

As Lin points out in his brief, “Unions may either represent only members or represent all employees within a particular bargaining unit, including non-members.  These options each come with costs and benefits under federal law that unions must weigh when determining whether and how to organize.”

The U.S. Supreme Court has never specifically ruled on the constitutionality of right-to-work laws, so opponents may as well mount a challenge every time another state passes one. Labor believes such laws cut into their influence in the workplace so it is understandable unions would fight in the courts when they lose in the legislative arena.

However, history and previous court rulings have not been on their side and their likelihood of success in West Virginia should be slim. The law is pretty clear on the issue. That’s why the state Supreme Court should overturn the stay and Judge Bailey should decide on the merits that the state’s right-to-work law is valid.

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