Kanawha County Circuit Court Judge Jennifer Bailey this week released an opinion that significantly undermines the state’s right-to-work law.

The original case dates back to 2016 when the AFL-CIO and other unions first challenged the Workplace Freedom Act passed by the state legislature. The law said a person cannot be required to join a union as a condition of employment and they cannot be forced to pay union dues.

It’s been nearly three years and we’re just now getting the judge’s ruling, but perhaps it took that long for Bailey to devise enough legal contortions to justify the flawed decision.

The judge sided with the unions, despite the state Supreme Court’s decision in 2017 reversing Bailey’s preliminary injunction preventing the law from going into effect. The high court ruled that the arguments were not likely to succeed on the merits.  That was an early warning sign that the union’s position was riding on a wing and a prayer.

By the way, while West Virginia was waiting patiently for the decision, Kentucky passed a right-to-work law and fully adjudicated it. The Kentucky Supreme Court upheld the law last November. Also in the meantime, the U.S. Supreme Court found in Janus v. AFSCME that government employees cannot be forced to pay agency fees to unions.

The Janus case is not exactly analogous because it deals with public, not private, employees. However, Elbert Lin, West Virginia’s former Solicitor General who crafted the original legal arguments in support of the state’s right-to-work law, said Janus provides reasoning that undermines Judge Bailey’s arguments

“As to the First Amendment, Janus suggests that the Supreme Court believes the free speech and association rights of the nonmember employees is what’s important, not the purported associational rights of the union itself.  As to the takings argument, Janus includes a lengthy discussion rebutting the idea that unions will get nothing for their labor without agency fees.”

As Justice Alito said in Janus, unions benefit substantially when they act as the exclusive bargaining agent for employees. However, as dictated by federal law, they must accept the trade off of representing all workers whether they are union members or not.

Judge Bailey said dues and fees are essential to the unions, and there’s no debate about that, but then she includes this peculiar twist: “They seek the opportunity to impose and collect fees that essentially function as taxes on collective bargaining union members for the cost of legislative and government services.” [emphasis added]

If that is the rationale, how does that not violate the individual’s right of free association? Does the union’s desire to provide “legislative and government services” (read: lobbying) trump an individual’s right not to be party to that?

And finally, Bailey argues the right-to-work law violates due process because it has “no rational basis.” That’s a legal “catch all” argument a judge uses when the merits are weak. It’s tantamount to a “because-I-said-so” argument.

“Whether one agrees with the RTW law or not as a matter of policy, it is difficult to accept the notion that there’s absolutely no conceivable reason justifying the law,” Lin said.

The opinion reads like a results driven decision; Decide first what the outcome is going to be, and then perform whatever legal gymnastics necessary to justify it. No doubt Attorney General Patrick Morrisey will appeal the decision to the state Supreme Court and we would hope the justices follow the lead of just about every other court that has take up similar cases.

Twenty-seven states have right-to-work laws and there have been plenty of court challenges. A court here and there has ruled against them, but no court of last resort has ever struck down right-to-work.

West Virginia’s right-to-work law is also on solid legal footing despite Judge Bailey’s imaginative opinion.

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