Tomorrow morning, the West Virginia State Supreme Court will hear arguments for and against the state’s right to work law. That law says a person cannot be required to join a union as a condition of employment and they cannot be forced to pay union dues.
The legislature passed the Workplace Freedom Act way back in 2016 but, incredibly, the law is still being adjudicated although it is in effect.
Labor unions have been fighting tooth and nail to overturn the law and they had early victories. Kanawha County Circuit Court Judge Jennifer Bailey initially issued a preliminary injunction preventing the law from being enforced, but the state Supreme Court overruled her, pointing out that the arguments were not likely to succeed on the merits.
Now the high court is prepared to hear full arguments in the case, and this is where the labor unions hope to prevail. They will argue the law prevents the unions from being compensated for providing services to non-members.
Twenty-six other states have right to work laws and they have survived court challenges. However, union lawyers will contend that there are “significant differences” between laws in those states and what the West Virginia Legislature passed.
It’s a long shot for sure.
If the Supreme Court would declare the law unconstitutional, it would be the first appellate decision of its kind that a state cannot ban compulsory union dues. The U.S. Supreme Court, federal courts and National Labor Relations Board precedent have all said employees cannot be forced to pay agency fees to unions.
The unions argue, not without merit, that workers should not get something for nothing. In other words, if the union is going to represent a worker on issues of wages and benefits, then the worker should be compelled to pay for that service.
However, forcing employees to pay dues runs afoul of the First Amendment. The U.S. Supreme Court ruled in Janus v. AFSCME that the free speech and free association rights of non-union members take precedent over a union’s effort to collect fees.
Justice Samuel Alito argued that unions benefit significantly when they act as the exclusive bargaining agent for employees and the trade off, as dictated by federal law, is that the unions must represent all the workers whether they are union members or not.
Meanwhile, while West Virginia has been sorting this legal tangle, neighboring Kentucky passed a right to work law and fully adjudicated it. The Kentucky State Supreme Court upheld the law in 2018. Kentucky Justice Larry VanMeter voted with the majority in the 4-3 decision saying, “In this area of economic legislation, the legislature and the executive branch make the policy, not the courts.”
Time and again the courts have rejected labor’s arguments against right to work, and that should be what will happen again after the West Virginia Supreme Court hears arguments tomorrow. Union efforts to reverse right to work are better spent at the ballot box trying to change the make-up of the body that develops public policy.