Now no ruling on whether W.Va. goes right-to-work until 2017

CHARLESTON, W.Va. — It will be 2017 before there’s a decision on whether West Virginia becomes a right-to-work state.

Lawyers for West Virginia labor organizations and for state government discussed their positions and precedents about right-to-work during a hearing this morning before Kanawha Circuit Judge Jennifer Bailey.

As the hearing ended, Bailey said she will need time to consider the arguments. She suggested the lawyers on both sides plan to get back together after the holiday season.

The law — still called Senate Bill 1 — was introduced in the Senate and sent to Judiciary on the very first day of the 2016 legislative session, Jan. 13.

It passed both houses and was sent to 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. Judge Bailey approved a temporary injunction supported by unions on August 10.

After a three-hour Friday hearing that was densely-packed with case law and responses, Bailey said she will need more time to consider right-to-work.

“On the motion for summary judgement, what I will need obviously is time to digest the arguments that have been made today, read these cases, consider the interpretations that you all would have me to consider,” Bailey told the lawyers for both sides.

West Virginia union leaders prepare for a hearing on right-to-work.
West Virginia union leaders prepare for a hearing on right-to-work.

The courtroom was packed with union leaders, including state AFL-CIO President Kenny Perdue and Secretary-Treasurer Josh Sword; Teamsters Secretary-Treasurer Ken Hall; Steve White, director of the Affiliated Construction Trades Foundation; and Elaine Harris, international representative with the Communication Workers of America.

Besides the need to absorb an extensive amount of case law, the right-to-work decision will be delayed by a couple of other matters.

One was the unexpected intervention request by a West Virginia resident who represents the interests of the National Right to Work Foundation. The intervention request was filed at 9:18, right before the hearing scheduled for 9:30.

Judge Bailey was incredulous, asking the lawyer who’d filed the request for intervention if he’d just now heard of the case.

“This has been pending for quite a while,” Bailey said.

Bailey was going to consider whether to grant the intervention and asked the lawyers for the state and the unions to compare their calendars for a hearing on that issue.

She suggested getting back together in mid-January. But Gilbert Dickey, the assistant attorney general who argued the state’s case, sheepishly spoke up and said he would be on his honeymoon at that point.

The overall 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.

The unions argue that employees who don’t would receive the benefits of collective bargaining without providing financial support to pay for those activities.

Arguing for the state, Dickey contended during the hearing that federal law carves out special rights for union representation, but those only go as far as state laws allow. He also interpreted case law to say that when there is a right to association, there is also a right to choose not to associate.

“The right to participate in a union cannot be construed as a further right to compel other employees,” Dickey said.

He later said, “If there is a right to association that permits the collection of associated fees, there is also a right to not associate.”

The unions, represented by attorney Bob Bastress, contended that the legislation is intended to weaken the labor movement.

“Membership is key to any organization. It’s crucial to unions,” Bastress said. “Senate Bill 1 would impose a significant burden on union abilities to receive and retain members.”

Some of the discussion focused on agency fees, which is what employees who are not members of the union still pay for union benefits such as contract negotiations and representation in grievances and arbitration.

“What Senate Bill 1 does is create a clique to get workplace services for nothing while forcing others to pay for these free riders,” Bastress said. “It will cause hostility, not harmony.”

Right-to-work proponents object to the political power unions gain through money collected through union dues. Bastress’s argument recognized that but stated it differently.

“Right-to-work laws are designed to weaken unions,” Bastress said. “The more free riders the less the union will have to spend. The fewer fees you will have, the less you will have to spend it on political activity. I think it’s fair to say the right-to-work laws are designed to limit the political activity of unions.”

Bailey actively participated, asking followup questions about how the lawyers would interpret earlier case law.

Before the hearing, Sword, the AFL-CIO’s secretary treasurer described how important the case is to unions.

“We believe it’s unconstitutional. We believe it’s an illegal taking of property from not only local unions but the members themselves.”

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