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Construction Bulletin

West Virginia Supreme Court Upholds State’s Right to Work Law

April 21, 2020

By: Mark H. Dellinger, Justin M. Harrison, Danielle M. Waltz, and Benjamin J. Wilson

On April 21, 2020, the Supreme Court of Appeals of West Virginia upheld the constitutionality of West Virginia’s Right to Work law and reversed a circuit court decision that found otherwise. The Court has remanded the case to the circuit court with directions to enter summary judgment in favor of the State of West Virginia. The entire decision can be found here.

In 2016, the West Virginia Legislature passed the “Workplace Freedom Act,” (the “Act”) joining 25 other states that had passed similar legislation. That number has since increased to 28 total states that have passed a Right to Work law. Essentially, the Right to Work law in West Virginia establishes that a person may not be required to join a union to pay any dues or fees to a union as a term and condition of employment. These fees, commonly called “agency fees,” will be referred to as “compelled dues” throughout this article, consistent with the Supreme Court’s vernacular.

The Act has since faced a myriad of legal challenges and delays, including the lawsuit leading to today’s decision. Shortly before its effective date - July 1, 2016 - several labor organizations filed a lawsuit that challenged the Act’s constitutionality. The circuit court found the Act’s prohibition on compelled dues to be an unconstitutional taking, and an infringement on the labor organizations’ freedom to associate and their liberty interests. In effect, the circuit court struck down the Act. That same lawsuit was the subject of the Court’s opinion today.

In reversing the lower court, the Supreme Court found that the provisions of the Act that prohibited compelled dues to a union as a condition of employment do not violate any rights of association under the West Virginia Constitution. The Court discussed the long history of labor relations in both the State of West Virginia and the United States, and the Court noted that no “federal or state appellate court [], in over seven decades, has struck down such a law.” The Court also found that no punitive action was directed towards members of labor organizations or the labor organizations themselves in this matter.  Simply, the Court found nothing in the law to discourage or prevent labor organizations from recruiting workers or any retaliation against workers who choose to join an organization. Indeed, the Court stated that the freedom to associate also includes the freedom not to associate. Thus, the Court found that no rights to associate had been infringed.  

The Court also found that the prohibition of these compelled dues did not constitute an unconstitutional taking by the State. The Act, the Court stated, does not impose a duty upon labor organizations to provide services to nonpaying employees; rather, the obligation to fairly represent all employees derives from federal law. The Court further rejected the labor organizations’ “free rider” argument, joining with courts around the country that have upheld similar laws. Rather than providing their services for no cost to non-dues-paying employees, also known as “free-riders,” the labor organizations enjoy substantial benefits that derive from being the exclusive bargaining representative. The Court stated that a labor organization’s position as the exclusive bargaining representative essentially gives them a “seat at the table.” The Court thus found that no unconstitutional taking occurred under the Workplace Freedom Act through the prohibition of compelled dues.

The Court finally found that the Act does not infringe upon any liberty interest because it imposed no requirement that labor organizations provide services to nonmembers. The Court again emphasized that this requirement flows from federal labor law, not state law. Therefore, the Court found that the Act did not infringe upon any liberty interest of the labor organizations.

As a final note, the Court was particularly persuaded by the Supreme Court of the United States’ recent decision in Janus v. American Federation of State, County and Municipal Employees, Council 31, __ U.S. __, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018). Janus also dealt with compelled dues, but in the public sector.  We wrote about the Janus decision here, and it seemed to influence the findings of the West Virginia Supreme Court as applied to compelled dues.

Jackson Kelly’s Labor and Employment Team and Government Relations Team had the privilege of participating in this case, representing one of the amicus curiae on brief. As always, members of the Labor and Employment Team stand by for any questions or concerns employers may have in the ever-changing world of labor and employment law.


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