Justice John Hutchison
CHARLESTON – Calling it unsurprising but still highly disappointed, the West Virginia AFL-CIO ripped the state Supreme Court for upholding the right-to-work law.
The organization also rescinded its endorsement for Justice John Hutchison following the April 21 opinion.
West Virginia AFL-CIO President Josh Sword said the law was created “solely to undermine and weaken unions in their efforts to protect workers and represent workers’ rights.”
“Obviously, we’re disappointed in the ruling,” Sword told The West Virginia Record. “But, we are not all that surprised. We knew the makeup of the court going into this, generally knowing the position they’d have and the result they’d issue.”
Sword said he isn’t sure of the next move.
“Honestly, I don’t know yet,” he said. “We have not had a discussion with legal team to figure out what legal options we have. We’re going to review and know what our options are.”
The justices, in their April 21 opinion, reversed and remanded a 2017 opinion by Kanawha Circuit Judge Jennifer Bailey that said the Workplace Freedom Act unconstitutionally infringes upon the rights of labor unions to associate, as well as their liberty and property rights.
In the 69-page ruling, Justice Evan Jenkins spells out the reasoning.
“We conclude that the act does not violate constitutional rights of association, property, or liberty,” Jenkins wrote. “Therefore, we reverse the circuit court’s contrary rulings and remand this case for summary judgment in favor of the state consistent with this decision.”
Jenkins served as acting Chief Justice for the case because Chief Justice Tim Armstead recused himself from hearing the matter because he was Speaker of the House in 2016.
“The Act does not violate association rights,” Jenkins wrote in the majority opinion. “There simply is nothing in the Act that prevents workers from voluntarily associating with labor unions; instead, the Act operates to protect workers from being forced to associate with labor organizations they do not wish to join or fund.
“The Act also does not take property. The obligation on certain labor organizations to provide collective bargaining and grievance services to non-member workers is imposed by federal law, not the Act. Furthermore, as we have explained above, labor unions that are obligated to provide this fair representation receive due compensation in the form of valuable benefits provided under federal law.”
“Circuit Judge Bailey had rightfully ruled that the so-called ‘Right to Work’ act clearly violates the West Virginia Constitutional rights of unions and individuals with regard to the illegal taking of their property,” he said. “This law has been the centerpiece of a years-long, partisan-driven agenda by the anti-worker majority to lower wages and benefits and eliminate workplace safety regulations – all in order to place corporate profits far above the health and safety of West Virginia workers, which is shameful particularly in light of the current pandemic we’re facing.”
Enacted in 2016, the Workplace Freedom Act essentially says a worker may not be required to become a member of a labor organization or pay any dues or fees assessments. The unions say the law amounts to illegal taking because non-union employees would gain the benefits of contract negotiation and other benefits without having to pay. The unions also say federal law already says workers don’t have to join.
The West Virginia AFL-CIO and other unions have fought the law since it before it was enacted in 2016 by the Republican-led Legislature. Then-Gov. Earl Ray Tomblin, a Democrat, vetoed the measure, but the Legislature overrode that veto. That kicked off a court challenge.
Bailey issued a preliminary injunction early in 2017. Soon, the state Supreme Court reversed that preliminary injunction, saying it stacked things against the union. But the makeup of the court was different then.
In February 2019, Bailey issued her final ruling essentially striking down the law. In March 2019, the Supreme Court issued a stay on Bailey’s order so they could hear the case.
“That this state Supreme Court, the product of scandal, corruption and an unprecedented impeachment process, would uphold such a law is very disappointing yet not at all surprising,” Sword said of the latest ruling.
Sword said the labor unions in West Virginia will continue to operate as they have since the state Supreme Court lifted the injunction on the law in 2017.
“As always, we will continue to negotiate for fair wages, good benefits and a safe workplace,” Sword said. “In 2020, we will work harder than ever to ensure that those who pushed for and supported this legislation, and any other laws that hurt working families, are voted out of office.”
West Virginia Attorney General Patrick Morrisey said the Supreme Court’s opinion adheres to the rule of law. His office had argued that little to nothing had changed since the Supreme Court allowed the law to take effect in 2018 after it was first passed in 2016. West Virginia became the 26th right-to-work state.
“By upholding the state’s Workplace Freedom Act, the state Supreme Court keeps with its own precedent and the unanimous agreement of every federal and state appellate court in the nation that has rejected similar claims,” Morrisey said.
Now, Sword said the AFL-CIO will turn its attention to the 2020 election and “hope to make some real changes that way.”
That includes rescinding its previous endorsement of Hutchison.
“Justice Hutchison approached our organization and met with many members, seeking our endorsement of his candidacy and our support,” Sword said. “Despite his statements both to us and in his concurring opinion that he values the work of unions, his vote to concur with the politically motivated decision in support of the state’s ‘Right to Work’ law made clear to us that he has put the interests of out-of-state corporations over the interests of West Virginia working families.
"The leaders of the West Virginia AFL-CIO and its affiliates can in no way support such a candidate.”
It was a concurring opinion, but Hutchison didn’t seem to give it an overwhelming endorsement.
“The law dictates that I must concur because the gist of the majority opinion is true: what the Legislature gives, the Legislature can constitutionally take away,” he wrote. “No other court in America has found a right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different.”
Hutchison said he has studied past right-to-work challenges, including countless U.S. Supreme Court, state court and federal court cases.
“With almost clarion unity, courts repeatedly hold that legislatures may give rights to unions and can just as quickly take those rights away with constitutional impunity,” he wrote. “The (West Viginia Supreme) Court acknowledged as much in 2017, saying that ‘27 other states have adopted right to work laws similar to West Virginia’s, and the unions have not shown a single one that has been struck down by an appellate court.’
“(That Supreme) Court hinted that the unions’ lawyers needed to come up with better legal arguments.”
But, Hutchison said he doesn’t there this is a better argument.
“I now think the solution lies in the ballot box, not the courtroom,” he wrote. “Having taken a constitutional oath as a justice, it is my sworn duty to uphold the law. I am, therefore, compelled by the law and my obligations as a justice to respectfully concur with the majority opinion.
Sword said Hutchison’s words and his vote didn’t hold water, but said he also thinks the solution lies in the ballot box.
“Here’s the way I see it,” Sword told The Record. “I’m going to use a legislative analogy. We have delegates and senators take to the floor and speak passionately about things every day during the session. In many cases, it lays the foundation on how they’re going to vote. You can get up and say whatever during the session, but we’re for working people or against working people.
“What Justice Hutchison did in his concurring opinion was that he essentially took the floor and gave a speech about how great unions are and how important they are. But when it came down to it, he voted against working families of West Virginia.”
Noting Justice Margaret Workman’s concurring and dissenting opinion as well, Sword said it’s unfortunate the more conservative balance of the court comes into play, especially on a decision like this.
“(Hutchison and Workman) know the makeup of the court better than anyone,” Sword said. “This issue (right to work legislation) has been politicized all over the country for decades, like a woman’s right to choose and Second Amendment rights.
“We saw a political decision from anti-worker Supreme Court majority.”
Hutchison's campaign did not return requests for comment for this story.
Sword, who is 44, said the 2020 election likely is the most important election of his lifetime.
“We have 28 years of bench time on the (Supreme Court) ballot, all of the board of public works, every seat in the House of Delegates an half of the Senate,” he said. “There are a lot of races out there, and many of them are extremely important in determining the makeup of next year’s legislative body.
“If this isn’t our top issue, it’s certainly one of our top three.”
For now, Sword said he isn't sure if the AFL-CIO will endorse another candidate in that race.
All three of the Supreme Court races are non-partisan. The Division 1 and 2 races are for regular 12-year terms on the Supreme Court. The Division 3 race is to fill the seat formerly held by Allen Loughry. Gov. Jim Justice appointed Hutchison to fill that seat in December 2018. The term for the Division 3 seat will end in 2024
Hutchison is seeking re-election for the Division 3 seat. He was appointed after former Justice Allen Loughry resigned. The term is to finish the rest of Loughry's term and will end in 2024. Charleston attorney Bill Schwartz and Fifth Circuit Judge Lora Dyer also are running for the seat.
For the Division 1 seat, incumbent Justice Tim Armstead is being challenged by former Justice Richard Neely and northern panhandle Circuit Judge David Hummel.
Running for the Division 2 seat currently occupied by Workman are Putnam County Assistant Prosecutor Kris Raynes, Kanawha Circuit Judge Joanna Tabit, Kanawha Family Court Judge Jim Douglas and former legislator and Supreme Court candidate Bill Wooton. Workman is not seeking re-election.
In 2018, Tabit finished third in a special election for two seats on the Supreme Court left by the retirements of Robin Jean Davis and Menis Ketchum. Armstead and Justice Evan Jenkins, both of whom had been appointed by Justice to temporarily fill those seats, won those elections. Douglas, Wooton and Schwartz all ran in the 2018 election as well.
The non-partisan court election is part of West Virginia's primary election, which has been rescheduled for June 9 because of the Coronavirus pandemic.
West Virginia Supreme Court of Appeals case number 19-0298