CHARLESTON, W.Va. — It’s possible there could be additional delays before a decision is made on the constitutionality of the West Virginia Workplace Freedom Act following an hour of oral arguments Tuesday before the state Supreme Court.
Justice Margaret Workman questioned the decision by the office of state Attorney General Patrick Morrisey to bring the right-to-work law to the Supreme Court before there’s been a full hearing on the merits of the case in circuit court.
“I just think you all are taking a shortcut coming up here wanting all of the answers without the lower court having made any substantive ruling on a lot of issues,” Workman told Tom Johnson, who argued the case on behalf of Morrisey.
Morrisey wants the Court to vacate a preliminary injunction entered by Kanawha County Circuit Judge Jennifer Bailey in August 2016. Bailey sided with labor unions that claim the law, approved by the legislature in 2016, would harm them by allowing non-members to benefit from collective bargaining while not having to pay union dues.
“It would invite freeloaders,” attorney Bob Bastress, arguing the case for the West Virginia AFL-CIO, told Supreme Court members Tuesday. “Workers can ask, ‘Why should I pay for services that I could get for free?'”
Justice Workman continued to urge a full hearing on the law at the circuit court level.
“In my mind this is the appeal of the granting of the temporary injunction, nothing more,” Workman said. “There ought to be a decision on these substantive issues by the circuit court.”
Johnson argued the injunction should be overturned because there’s not a substantial likelihood of success on appeal. Justice Menis Ketchum said that’s another reason the case should be sent back to circuit court.
“It still goes back to the circuit judge for the union to develop the constitutional arguments,” Ketchum said.
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, 2016
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, 2016. Judge Bailey approved a temporary injunction supported by unions on Aug. 10. The law has been on hold since then.
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.
Tuesday’s arguments were the first of the fall term for the Supreme Court. The Court could make one of any number of decisions with the case. An order is expected sometime later this year.
West Virginia AFL-CIO President Josh Sword urged the Supreme Court to allow Judge Bailey the time to make a ruling on the merits of the case.
“It is our hope that the Supreme Court justices will allow the temporary injunction to remain in place so that Judge Bailey can take the time she needs to make a determination,” Sword said in a statement released after the arguments were made Tuesday.
In a prepared statement, Morrisey said the law needs to be allowed to go into effect.
“Today my office vigorously defended the Workplace Freedom Act. We believe this is plainly constitutional legislation. Courts have repeatedly upheld similar laws, and we remain hopeful the court will agree with our arguments,” Morrisey said.