Circuit judge strikes down West Virginia right-to-work law

CHARLESTON, W.Va. — A circuit judge has struck down key components of West Virginia’s 2016 right-to-work legislation.

Judge Jennifer Bailey

Kanawha Circuit Judge Jennifer Bailey issued the opinion Wednesday, three years after the Legislature first passed the law.

“The new law will require unions and union officials to work, to supply their valuable expertise and to provide expensive services for nothing,” Bailey wrote in her 46-page ruling. “That is, in a word, arbitrary.”

The overriding 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 argued that employees who don’t would receive the benefits of collective bargaining without providing financial support to pay for those activities. In other words, they said, the right-to-work law takes union property.

Bailey concluded that association would not be forced on anyone. Instead, the judge wrote, the fees collected by unions “essentially function as taxes on collective bargaining members for the costs of ‘legislative’ and governmental services.”

The judge also concluded that prohibiting a union from collecting such fees constitutes a taking of property: “It takes money from the union, and derivatively from its members, and essentially gives it to free riders.”

She wrote, “Membership is obviously the lifeblood of any labor organization. Members’ dues provide unions with nearly all of their revenues for operating expenses, and members’ commitment and participation give the organizations their capacity to represent workers effectively in dealing with employers.

“S. B. seriously hampers the unions’ ability to recruit new members and retain old ones.”

The judge went on to write, “If unions cannot exact agency fees, employees would be able to receive, without any cost to them, the full benefit of the union’s services in negotiating and administering the contract. And if workers can get those services for free, they would have no incentive to join the union or remain a member.

“In fact, those who do join or stay in a union would be paying a penalty for the privilege because their dues would
have to be raised to underwrite the union’s services provided to the free riders.”

Josh Sword

West Virginia labor unions celebrated the ruling.

“Judge Bailey was right-on with her ruling,” West Virginia AFL-CIO President Josh Sword stated.

“She made it very clear that this bill violates the West Virginia Constitutional rights of unions and individuals with regard to association, property and liberty.”

Bailey had issued an injunction in 2017 while she considered her ruling. The state Supreme Court overruled the injunction later that year, scolding the judge for taking so long.

The state’s unions failed to establish the likelihood of success based on the merits of three constitutional claims, wrote Justice Menis Ketchum in the court’s majority opinion in 2017.

“Because of the far-reaching effect of Senate Bill 1 and its potentially substantial impact upon public interests, in the future, we encourage the circuit court to act with greater celerity in bringing this case to a resolution,” Ketchum wrote in the majority opinion knocking down the injunction.

Since then, the Supreme Court has changed significantly. Ketchum faces sentencing on a federal wire fraud charge. Former Justice Allen Loughry, who was also in the majority on that opinion, has been sentenced to two years in prison on fraud charges. With them in the majority ruling was current Chief Justice Beth Walker.

Robin Davis, a justice who dissented, resigned from the court. Justice Margaret Workman, who dissented in part and concurred in part, remains on the court.

The current Supreme Court includes former Republican lawmakers Evan Jenkins and Tim Armstead, who was speaker of the House of Delegates when the law passed. The other new justice is former Circuit Judge John Hutchison.

Bailey’s opinion issued today takes some digs at the earlier Supreme Court ruling.

“The September 15, 2017 opinion, while criticizing the lower court’s reasoning in determining to issue the preliminary injunction, never clarified the standard for a preliminary injunction in this state, as no Syllabus Point has ever been adopted by the Supreme Court setting forth those standards.”

Attorney General Patrick Morrisey

The state Attorney General’s Office was still assessing Bailey’s ruling today, comparing it to what the Supreme Court has said.

“We are reviewing the circuit court’s decision, comparing it to the Sept. 15, 2017, state Supreme Court ruling and will have more to say at the appropriate time,” said Curtis Johnson, a spokesman for the Attorney General’s Office.

Right-to-work legislation was such a priority during the 2016 session that it was officially Senate Bill 1. It was introduced in the Senate and sent to Judiciary on the very first day of the that year’s legislative session, Jan. 13.

It passed both houses and was sent to then-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, 2016. Judge Bailey approved a temporary injunction supported by unions on August 10, 2016. She then filed a written version of the preliminary injunction in early 2017.


16 C 959 WV AFL CIO v Justice ORDER (Text)


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