The West Virginia legislature passed a bill during the 2016 regular session making West Virginia a right-to-work state. Governor Tomblin vetoed the bill, but the House and Senate overrode the veto and the law went into effect July 1, 2016.
However, nearly 15 months later West Virginia is still not a right-to-work-state.
The state AFL-CIO challenged the law in court and in August 2016, Kanawha County Circuit Court Judge Jennifer Bailey issued a temporary injunction prohibiting the law from being enforced. State Attorney General Patrick Morrisey challenged the court order and finally last week the state Supreme Court heard arguments in the case.
The high court should rule soon, but that won’t be the end of it. The issue before the court is whether the circuit judge’s temporary order blocking the law should stand. Regardless of how the Justices rule, it’s likely that a court fight over the merits of the right-to-work law is ahead.
Labor argues the law is unconstitutional because it is tantamount to an illegal taking since a union may have to represent a worker even if that worker does not join their organization or pay dues. “Our contention remains as strong as it was the day we filed this lawsuit in 2016 that this law is an unconstitutional taking of property rights from local unions and their members,” said AFL-CIO President Josh Sword.
Sword is right that the union will have to represent all employees at a workplace whether or not they join and pay dues, but only if the union acts as the exclusive bargaining agent. If the union chooses to have that exclusive representation–which carries with it a considerable amount of power and benefits–then under federal law it must represent all employees.
If the union does not wish to be the exclusive bargaining agent, then it can operate with a “members only” arrangement where it represents only dues-paying workers who willingly join the union.
These and related issues have already been adjudicated a number of times in many of the 28 states that have adopted right-to-work laws. West Virginia’s law is not substantially different from these other cases to warrant it being tossed out, unless a judge or a court here makes that call for political reasons.
For years, West Virginia was not a right-to-work state because Democrats controlled the legislature. That has changed and the Republicans wasted no time passing the bill and even overriding a gubernatorial veto.
Whether or not West Virginia is a right-to-work state is a public policy decision to be debated and voted upon by the people’s representatives. That process was followed and the courts should recognize that while the unions are upset, their arguments do not justify overturning the legislature’s will.