This week the West Virginia Supreme Court upheld the state’s right-to-work law. It is sometimes said that the wheels of justice turn slowly. In this case, the pace was glacial.
The West Virginia Legislature passed the Workplace Freedom Act in 2016. Labor unions challenged the law and Kanawha County Circuit Court Judge Jennifer Bailey did her best to block the Legislature’s intent and slow roll her rulings.
The decision reached by the Justices may have been long-delayed, but it was inevitable. As Justice Evan Jenkins wrote in the majority opinion, the unions “failed to present any relevant federal or state authority” indicating that right-to-work laws are unconstitutional.
Thus, the high court of West Virginia joins every other state or federal appellate court that has taken up the issue in upholding the constitutionality of right-to-work laws.
The unions argued that workers should not get something for nothing; if a union is going to represent a worker on wages, benefits, and workplace issues, then the worker should be compelled to pay for that service (union dues).
However, that argument runs afoul of the Constitution. Jenkins cited the U.S. Supreme Court ruling in Janus v. AFSCME, which determined that free speech and free association rights of non-union members take precedent over a union’s effort to collect dues.
But then is the union providing a service to nonmembers for free? Justice Jenkins said no.
Jenkins referenced the Janus finding to conclude that “labor organizations that have been designated as an exclusive representative (of all employees) receive compensation for their representation of nonmembers in the form of the significant benefits they obtain by virtue of that designation.”
The union’s position as the exclusive bargaining representative guarantees the union the powerful position of “a seat at the table” in labor discussions and, according to federal law, the union has a responsibility to represent all workers.
There is an interesting political side note to the decision. Justice John Hutchison, who was appointed to the court by Gov. Justice, is up for election this year. Hutchison is in the unique position of being endorsed by business and labor groups.
However, the AFL-CIO quickly withdrew its endorsement because Hutchison sided in support of the right-to-work law. In his concurring opinion, Hutchison effusively praised the contributions of labor unions, but concluded, “No other court in America has found right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different.”
That prompted AFL-CIO President Josh Sword to tell me on Talkline, “I will say this about Justice Hutchison, in his own concurring opinion, he spoke very highly of unions. But he still concurred, and that’s the problem.” The AFL-CIO decided Wednesday afternoon to rescind the endorsement.
What Justice Hutchison did was follow the law, which is his obligation, and based on the findings in this case and every other right-to-work case, he reached the legally sound conclusion.
He tried to placate the unions in his concurrence by paying homage to labor. However, with the highly charged right-to-work issue, there is no splitting the baby.
Hoppy Kercheval is a MetroNews anchor and the longtime host of “Talkline.” Contact him at hoppy.kercheval@wvradio.com.
