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West Virginia Record

Saturday, May 30, 2020

You don’t need a weatherman to know which way the wind blows

Their View

By Mark Carter | Apr 29, 2020

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CHARLESTON – The forecast for West Virginia’s right-to-work law has now become clear. In a decision in which all five of West Virginia’s Supreme Court justices concurred, the court put to rest the arguments raised by organized labor for the past four years regarding the constitutionality of the Workplace Freedom Act.

The court ruled in a meticulous and comprehensive 65-page decision that the law is as constitutional as laws get. The unions’ argument that their rights to associate, their liberty rights and even the vaunted “free-rider” argument, which claims that a union cannot be required to pay the freight for non-member non-dues-paying employees, were rejected.

None of this is a surprise.

However, while the AFL-CIO reached the same conclusion regarding the fact that the decision is not a surprise, it was deeply wrong in casting blame on the allegedly unsympathetic and “corrupt” court. All of the justices agreed that as a matter of law, the unions’ arguments do not hold water. No appellate court in over 70 years has held that a state’s right-to-work law is unconstitutional. The West Virginia Supreme Court simply applied the law and reached the same conclusion as every other appellate court.

But while the final decision surprised no one, the precedent supporting this decision may inform lawyers regarding the courts evolving perspective on the legality of requiring employees to finance unions, or other third parties, as a condition of keeping their jobs. In 2018, the United States Supreme Court issued its opinion in Janus v. American Federation of State, County and Municipal Employees, Council 31, 138 S.Ct. 2448. 

In Janus, a public-sector employee decided to withdraw from the union that represented his fellow employees. A state statute in Illinois permitted the union to require that he either pay “agency fees” – compelled dues – or face termination by the employer. Janus challenged the state law arguing that as an employee, his First Amendment rights guaranteed him the right of free association, and those rights were infringed upon by being forced to pay compelled dues in order to keep his job. 

The Court agreed, noting the right of association enjoyed by every citizen includes the right “not to associate” with anyone with whom they do not wish. Janus’ right not to associate with the union was violated when he was forced to pay dues to that union to remain employed.

The Supreme Court of West Virginia relied upon the Janus decision in upholding the constitutionality of the Workplace Freedom Act. The majority wrote that “(b)y striking down the Illinois compelled dues statute, the Court highlighted the importance of protecting the rights of workers to be free from financially supporting labor organizations whose views they do not share.” 

Our court similarly found that the distinction between a public-sector employee and a private-sector employee was “of no moment,” writing that the differences between public- and private-sector collective bargaining do not translate into differences in First Amendment rights: “Workers in the private sector have no less of a right than public-sector employees to be free from forced association with a labor organization.”

Justice Margaret Workman, who concurred in part and dissented in part, aptly wrote that, “You don’t need to be a weatherman to know which way the wind blows; there is no principled basis on which to conclude that under the legal analysis upon which Janus is based, a prohibition on the collection of agency fees is constitutional for public employees’ but unconstitutional for private employees’ unions.”

The winds of change are blowing in the courts and in the legislatures of the United States. 

As the court noted, 27 states have now enacted a right-to-work law. The courts are upholding and enforcing protections for employees to determine for themselves whether they will voluntarily support a labor union with dues payments, or more importantly, whether they can be compelled to support a union financially against their will as a condition of employment. These protections are now the subject of constitutional jurisprudence in the highest court in our nation. 

The state courts fashion their own interpretations of the Janus decision, but it is clear that the courts are ascribing to our foundational legal document – the Constitution of the United States – protections for employees that have not been recognized before.

Time will tell if right-to-work laws evidence good or poor policy. The justices who chose to issue separate opinions expressed grave and apocalyptic predictions that have not borne out in any other state concerning the impact of a law that simply guarantees an employee’s right to choose. 

But when is the starting point to evaluate the impact of the Workplace Freedom Act? 

To evaluate the relative merits of the law using 2016 as a starting point, as some have done, is nonsense. The law has either been outright prohibited from enforcement or has stood under a cloud. Now, for the first time, there is no doubt as to its enforceability. Now the impact of the law and its effects can be objectively measured.

West Virginia has a very good story to tell in the current environment. With a pandemic raging and businesses idled throughout the country, there is no doubt certain states have become less attractive to business, and other states are becoming more attractive. 

Our state is attractive. Beyond being beautiful to behold, it is safer and increasingly welcome to business development. Business means jobs. Jobs result in greater prosperity. More prosperity is of little value to workers if it is accompanied by unsafe working conditions, lower wages and little opportunity to grow. These are the predicted outcomes posited by right-to-work opponents for more than a half a century. 

These critics have also insisted that the laws are unconstitutional. They are not right on either point. A law that empowers an employee to control their own finances without having to pay a third party to keep their job does not make their work less valuable or their future less bright. If the law empowers employees and makes West Virginia a more attractive place to do business, then it enhances our workers’ potential for greater prosperity and a better life. 

You don’t need a weatherman to see which way the wind is blowing, and the forecast for West Virginians has just become brighter.

Carter is a labor and employment lawyer in Dinsmore Shohl's Charleston office.

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