West Virginia Right-to-Work Makes its Way to the State Supreme Court

West Virginia’s right-to-work law may be heading for oral argument after the state’s Supreme Court issued an order granting a motion to stay the decision of a circuit court, which struck down key provisions of the law as arbitrary.

On March 29, 2019, the West Virginia Supreme Court of Appeals granted the motion to stay filed by State Attorney General Patrick Morrison. According to the motion, “Allowing the circuit court’s order to take effect would engender confusion among employees, unions, and employers as to the appropriate legal framework for negotiating collective bargaining agreements while this appeal is pending.” The Attorney General has also filed a notice of intent to appeal the circuit court decision.

The Supreme Court’s Order stayed the February 27, 2019 ruling by Circuit Judge Jennifer Bailey, which struck down key components of the right-to-work law. In her 46-page opinion, Judge Bailey found that the law is arbitrary insofar as it requires unions to work and provide services to non-fee-paying members for nothing. The stay prevents Judge Bailey’s decision on the law from becoming final and binding throughout the state.

West Virginia’s right-to-work law was passed by the state’s Republican Legislature in 2016. Under the law, labor unions are required to represent all unit members, regardless of whether the member pays representation fees (sometimes called “fair-share fees”).

Josh Sword, President of the West Virginia AFL-CIO, intends to fight the law in the state’s high court. Under the AFL-CIO’s view, the right-to-work law amounts to an unconstitutional taking of property by making unions represent all workers regardless of membership. According to Sword, the AFL-CIO “look[s] forward to the next step of this process in our quest to protect our property rights and our liberties under the state’s constitution.”

West Virginia is the latest state to have its right-to-work law in the spotlight following the United States Supreme Court’s June 2018 ruling in Janus v. AFSCME, which held that public sector fair-share fees violate the First Amendment. Labor advocates will be watching closely to see whether the West Virginia high court rules similarly and makes right-to-work the law of the land.