West Virginia right-to-work law is constitutional

By Joy Waltemath

By Harold S. Berman J.D.

West Virginia’s new right-to-work law can be implemented despite constitutional challenges from several unions, the Supreme Court of Appeals of West Virginia ruled. Reversing and remanding a state circuit court’s decision to issue a preliminary injunction that temporarily halted the law’s implementation, the state high court found the court below abused its discretion in issuing the injunction because the unions were unlikely to succeed on the merits of their constitutional claims and no other appellate court in the country had struck down even one of the many similar laws of other states (Morrisey v. West Virginia AFL-CIO, September 15, 2017, Ketchum, M.).

Challenge to right-to-work law. Several unions sought to stop the implementation of West Virginia’s new right-to-work law, arguing that it was unconstitutional because it was unfair to unions and union members. West Virginia countered that the law was fair because it protected workers who did not want to join or pay dues to a union. The law barred a union and an employer from entering into a collective bargaining agreement that would compel all employees to join the union, and eliminated a union’s ability to compel nonunion members to pay any dues or fees of any kind in exchange for the union’s assistance.

The unions maintained that the law violated the West Virginia Constitution because it impaired the associational rights of unions to consult for the common good, it took the unions’ property without just compensation, and it violated their liberty interests by requiring them to devote resources to nonunion employees without being able to charge them a fee. The unions argued that if the law was implemented, they would be harmed because they would be unable to bargain for compulsory membership and fees without potentially violating the law.

Injunction and appeal. A West Virginia circuit court issued a preliminary injunction which temporary halted the implementation of the law, ruling that it would not go into effect until the court ruled on the merits of the unions’ arguments. The state appealed the preliminary injunction order.

Reverse and remand. Reversing and remanding, the state high court found that the unions were unlikely to succeed on the merits of their constitutional arguments, and so the circuit court abused its discretion and should not have granted the preliminary injunction. Similar right-to-work laws had been passed in 27 other states, and the unions did not show that even one had been struck down by an appellate court. Nor did the unions show which provision of the West Virginia Constitution provided, beyond a reasonable doubt, that a right-to-work law was improper.

Federal law, under the Taft-Hartley Act and U.S. Supreme Court precedent, permitted states to pass laws prohibiting agreements that required union membership as a condition of employment, or required nonunion employees to pay union dues or fees.

Right of association. The unions’ argument that the law violated their freedom of association rights under the West Virginia Constitution failed because nothing in the law precluded an individual from voluntarily choosing to associate with a union or pay union dues. The U.S. Supreme Court, in Lincoln Fed. Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., had long ago held that the constitutional right to assemble and associate did not entitle a union to compel nonmembers to participate as a condition of employment, and that unions were not constitutionally entitled to the fees of nonmembers.

Taking of property. The court also rejected the contention that the law was an unconstitutional taking of union property. Before the law was passed, unions that did not have a collective bargaining agreement had only a unilateral expectation of receiving fees from nonmembers, and so could only speculate whether they would be able to negotiate new agreements that would require the collection of fees from nonmembers. Before the new law, a collective bargaining agreement that required such fees could only be created with the employer’s consent. The law did not affect existing contracts, but only future contracts that unions and employers had not yet negotiated or accepted, and so unions had no protected property right that the legislature took by passing the law.

Liberty interest. The court also rejected the unions’ argument that the law deprived them of their constitutional liberty interests in their labors by requiring the unions to essentially work for nothing. The unions did not sufficiently develop their legal argument such that the court could consider it. Additionally, similar to their other claims, the unions failed to show that any other appellate court in the country had adopted a similar argument to invalidate a right-to-work law.

Concurring opinion. In a concurring opinion, Judge Loughry pointedly criticized the circuit court for being “not merely imprudent, but profoundly legally incorrect.” The concurring opinion underscored that the unions’ arguments, and the circuit court’s decision, were completely unsupported and lacking in merit.

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