Right to work case finally hits W.Va. Supreme Court this week

CHARLESTON, W.Va. — The longstanding battle over right-to-work legislation in West Virginia resumes this week.

The state Supreme Court is scheduled at 10 a.m. Wednesday to hear oral arguments in an appeal of a circuit court decision in the case, Patrick Morrisey, Attorney General v. WV AFL-CIO and others.

Here’s a primer:

Who: Morrisey is the state’s attorney general. Lawyers for his office are representing the State of West Virginia, which was sued after the state Legislature passed the Workplace Freedom Act in 2016.

The West Virginia AFL-CIO and other unions have been fighting the law in court, saying it represents an illegal taking. They 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.

The state Supreme Court is hearing the case. That includes justices Beth Walker, Margaret Workman, Evan Jenkins and John Hutchison.

Tim Armstead, the current chief justice, is sitting this one out because he was speaker of the House of Delegates when the bill passed. Cabell Circuit Judge Gregory Howard will be in for Armstead. Judicial elections in West Virginia are nonpartisan, but Howard earlier served in the Legislature as a Republican.

What: This is the conclusive battle over union representation in West Virginia’s workplaces after years of skirmishes.

In 2016, the Legislature’s Republican majorities passed the “Workplace Freedom Act,” joining 27 other states that had passed right to work laws — and a watershed moment, considering longstanding union influence on West Virginia politics.

The law said a person may not be required to become a member of a labor organization or pay any dues or fees assessments.

It was vetoed by the-Gov. Earl Ray Tomblin, and the Legislature then overrode the veto. That prompted a challenge in court that has continued off and on until now.

“Now, it is time to bring this case to a final resolution and confirm that the Workplace Freedom Act stands on solid constitutional ground,” wrote lawyers representing the state in their petition to the Supreme Court.

When: The case goes back years.

West Virginia 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 Walker and Workman, 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.

“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.”

Still, it wasn’t until Feb. 27 of last year that Judge Bailey made a final ruling on right to work.

Although she denied some parts of the unions’ position, she upheld the key aspects, essentially striking down right to work.

“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 Supreme Court on March 29, 2019, stayed Bailey’s order until justices could hear the case.

That moment comes Wednesday.

Why: Unions including the AFL-CIO contend federal law already means workers don’t have to join. They’re arguing a slightly different point: that the law blocks their ability to be compensated for services such as contract negotiation if workers choose not to join.

“They have no quarrel with the ability of collective bargaining unit; that is within their right,” lawyers for the unions wrote.

“Rather, what the plaintiffs object to is the Act’s prohibition on the unions’ assessments for services provided to those non-members.”

Lawyers for the state counter that the labor organizations could offer their services only to members.

“And far from restricting employees’ right to choose to join or not joint a union,” those lawyers wrote, “the Act recognizes employees’ important interests in not being forced to associate with a union in the form of paying compulsory agency fees.”

How: Briefs and supporting documents have already been filed with the Supreme Court. So when oral arguments begin on Wednesday, justices will likely interrupt almost immediately to ask about the application of particular points of law.

Different questions might be on different Justices’ minds, so there’s no guarantee that the back-and-forth will be orderly.

The lawyers for the Attorney General suggest in their briefs that because the Supreme Court has already ruled against the unions once, that outcome is likely again here. Those lawyers say the evidence remains as it has been from the beginning.

“Even though nothing has changed in Respondents’ favor in the interim, the circuit court ignored this Court’s direction and repeated the flawed analysis from its preliminary-injunction order to permanently enjoin the act,” those lawyers wrote.

Lawyers for the unions say the Supreme Court, in its earlier injunction decision, had not heard a full argument of the case.

“The earlier decision did not have the complete record before the court, as the circuit court did when it ruled on the summary judgment motions,” lawyers for the unions wrote.

Those lawyers went on to write, “There was no discussion of the case law, no recognition that there are significant differences between the laws in most of those twenty-seven other states and West Virginia’s version, or that previous challenges to right to work laws have largely dealt with issues other than West Virginia’s prohibition on agency fees.”

For those who want to watch oral arguments, the Supreme Court streams here.  There are no archived versions of the proceedings.

Below are some of the key documents in the longstanding case.

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