CHARLESTON, W.Va. — State Supreme Court justices heard arguments in what’s likely to be the ultimate test of right-to-work legislation in West Virginia.
West Virginia’s Republican-led Legislature passed the “Workplace Freedom Act” in 2016, and it’s been under review by the court system since then.
After a circuit judge overturned key aspects of the law almost a year ago, the Supreme Court was asked to review that decision and heard oral arguments Wednesday morning in a courtroom packed with union leaders, business leaders and political figures.
“We respectfully ask this court to reverse the circuit court and to uphold the ‘Workplace Freedom Act,'” Lindsay See, solicitor general, told justices while representing state agencies.
The act was filled with economic and political significance when it passed four years ago as Senate Bill 1. Its journey through the court system has maintained interest.
The ornate courtroom was packed Wednesday for “Patrick Morrisey, Attorney General and the State of West Virginia v. West Virginia AFL-CIO, et al.”
Spectators included Morrisey himself, former state Senate President Bill Cole, state Chamber of Commerce President Steve Roberts, AFL-CIO President Josh Sword and delegates Mike Caputo and Michael Angelucci, both Democrats.
Oral arguments lasted about an hour, as opposing lawyers for for the state and labor unions made their cases. Justices frequently jumped in with questions.
Chief Justice Tim Armstead, who was Speaker of the House of Delegates when the law passed, stepped aside. He was replaced for this case by Cabell Circuit Judge Gregory Howard. Judicial elections in West Virginia are nonpartisan, but Howard earlier served in the Legislature as a Republican.
Lawyers for the Attorney General’s office contended that precedent means the law should be upheld.
The unions contend that the act would allow non-union employees of companies to gain the benefits of contract negotiation and other benefits without having to pay.
“It’s the impact on the unions’ ability to attract and retain union members,” said Bob Bastress, lawyer for the AFL-CIO and the other unions.
Justice Margaret Workman noted several times that the court is not being asked broadly about the legality of right to work but instead the particular question of whether allowing employees to opt out of agency fees constitutes an illegal taking for unions who would represent them anyway on matters such as contract negotiations.
“How many cases have there been on this narrow issue of union dues?” asked Workman, who specified that she meant instances involving the private sector.
The answer was six, according to See, the lawyer for the Attorney General’s Office.
Workman later asked whether, as a practical matter, unions will shrivel if the law is upheld.
“Isn’t it just obvious unions will go under?” she asked. “There won’t be a bargaining unit for employees.”
See countered that hasn’t been the case elsewhere.
West Virginia’s court system has been considering these matters for years.
Labor unions filed a complaint challenging the act four days before its July 1, 2016, effective date. The unions asked for a preliminary injunction to stop it, and there was an August 10, 2016, hearing in the courtroom of Kanawha Circuit Judge Jennifer Bailey, who announced a preliminary injunction the same day.
From there, it was a long wait.
Judge Bailey issued a written order granting the preliminary injunction on Feb. 23, 2017.
A few months after that, the Supreme Court got involved for the first time, reversing the preliminary injunction. That was a different court that included Workman and Justice Beth Walker, along with then-Chief Justice Allen Loughry and justices Menis Ketchum and Robin Davis.
The majority opinion concluded the unions were unlikely to succeed long-term and scolded Bailey for taking so long.
“It feels a little bit like deja vu here because this case was taken up a couple of years ago,” Justice Walker said on Wednesday morning. “What has changed?”
All sides agreed they have not taken new testimony or evidence in the case since 2016.
But Bob Bastress, attorney for the unions, said the injunction decision written by Ketchum was flawed. “That decision simply didn’t address our arguments,” Bastress said, referring to legal reasoning focused on right to association.
Justice Evan Jenkins said, “What has changed is Janus.”
That’s a reference to Janus v. American Federation of State, County, and Municipal Employees, which the U.S. Supreme Court heard in 2018. It dealt with the power of labor unions to collect fees from non-union members.
Bastress, though, said the case applied to labor agreements in the public sector, whereas the questions in West Virginia apply to the private sector.
See, in her conclusion, called Janus “the most important change since 2017.” She said, “It’s very difficult to argue that right-to-work is required in the public sector but prohibited in the private sector.”
Workman noted, “Janus is not completely analogous here because it’s a public sector case.”
Workman, Walker and Jenkins were the most active questioners. Hutchison, appointed to the court by Gov. Jim Justice last year, asked only a couple of questions, including about the standard of review for the case. And Judge Howard, sitting in, didn’t ask anything.
It could still be a while before anything is resolved.
Justices will conference, discuss this case and others and reach a conclusion. One of them will be assigned to write an opinion for the majority, and it’s possible some will choose to write their own dissenting or concurring opinions.
Then, probably this spring, an opinion will be announced, likely settling the question of right-to-work in West Virginia.