State of Affairs

On April 21, 2020, the Supreme Court of Appeals of West Virginia issued a long-awaited decision upholding West Virginia's right-to-work law, which was originally passed by the Republican-led Legislature in 2016 as the "Workplace Freedom Act." In doing so, the Court has brought finality to the nearly-four-year legal saga surrounding the constitutionality of the statute.

The Act was originally passed in February of 2016, making West Virginia the 26th such state to enact right-to-work legislation. Pursuant to W.Va. Code § 21-5G-2, employees could not be compelled to either become a member of a union or pay union dues, commonly referred to as "agency fees," as a condition of their employment in workplaces where the employer has an exclusive collective bargaining agreement with a union. Under the framework of the National Labor Relations Act (NLRA), labor organizations operating in right-to-work states are still bound by the duty to provide fair representation and are required to implement any applicable collective bargaining agreement on behalf of every member in a bargaining unit, regardless of whether the employee is a dues-paying member of that labor organization.

While West Virginia's law was slated to go into effect on July 1, 2016, it was challenged just four days prior to the effective date by various labor organizations. Kanawha County Circuit Judge Jennifer Bailey held a preliminary injunction hearing on August 10, 2016, at which time she indicated that a preliminary injunction would be entered prohibiting enforcement of the right-to-work law. The Kanawha County Circuit Court's written order confirming the same was issued on February 23, 2017 and subsequently appealed to the Supreme Court of Appeals of West Virginia by Attorney General Patrick Morrisey.

On September 15, 2017, a majority of the West Virginia Supreme Court struck down the Kanawha County Circuit Court's preliminary injunction of the Act in the case of Morrisey v. W.Va. AFl-CIO, 239 W.Va. 633, 804 S.E.2d 883 (2017) ("Morrisey I"). A majority of the Court found that the labor unions had failed to establish any likelihood of success on the merits with respect to the constitutionality of the Act, and remanded the case back to the Kanawha County Circuit Court to conduct a final hearing on the merits.

On remand, the parties presented no additional evidence or arguments as to the merits of the legal challenge. On February 27, 2019, approximately 17 months after the Supreme Court's ruling in Morrisey I, the Kanawha County Circuit Court granted partial summary judgment in favor of the labor unions "on their claims that the ban on compelled dues contained in West Virginia Code sections 21-1A-3 and 21-5G-2 violated the West Virginia Constitution because it infringed upon labor organizations' association rights, property rights, and liberty interests." Morrisey v. W.Va. AFL-CIO, No. 19-0298 at *19-20 (W. Va. Apr. 21, 2020) ("Morrisey II").

In yesterday's reversal of the February 27, 2019 Order of the Kanawha Circuit Court, the Supreme Court analyzed each of the arguments presented by the labor unions in its nearly sixty-five page majority opinion and ultimately found that the Act did not infringe upon either the associational rights, property rights or liberty interests of the complaining labor unions.

Writing for the majority of the Court, Justice Evan Jenkins opined that the Workplace Freedom Act "simply does not infringe upon any association rights the Labor Unions have attempted to claim here. Instead, it operates to protect the right of workers to not be forced to associate against their will." Morrisey II at 41-42. The Supreme Court further wrote that "the constitutional freedom of association argument proffered by the unions is nearly identical to the one rejected by the United States Supreme Court almost seven decades ago." Morrisey II at 36 (referencing Lincoln Fed. Labor Union No. 19129, A.F. of L. v. Nw. Iron & Metal Co., 335 U.S. 525, 69 S.Ct. 251, 93 L. Ed. 212 (1949)).

Consistent with other state and federal appellate court decisions, the Supreme Court also rejected the labor unions' argument that the Act forces an unconstitutional taking of their property – namely the agency fees of employees who did not want to belong to a union. In evaluating the unions' claims, the Supreme Court noted that it was federal law – and in particular the NLRA's duty for exclusive bargaining representatives to provide fair representation to all employees, as found in 29 U.S.C. § 159(a) – and not the W.Va. statute which effectuated any so-called taking. Furthermore, the Court found that labor unions are already justly compensated for any perceived taking through the bestowal of excusive bargaining status under the NLRA. Morrisey II at 52-53.

Finally, the Court summarily concluded that the Act in no way infringes upon the liberty interests of labor unions either. The Supreme Court again observed that the Workplace Freedom Act does not impose any duty upon labor unions to provide services to noncontributing employees for free. Rather, this is an obligation of exclusive bargaining representatives that arises under federal law.

In upholding the Workplace Freedom Act, the West Virginia Supreme Court has joined all other state and federal appellate courts previously examining this issue – none of which have previously struck down a state right-to-work law.

In ruling as it did, the Court also emphasized important principles of separation of powers, acknowledging the West Virginia Legislature's "near plenary authority…to act within constitutional boundaries" to enact matters of public policy. Morrisey II at 21. While many may debate and disagree regarding the public policy merits behind right-to-work legislation, all five members of the Court agreed that the adoption of such a law was well within the purview of the W.Va. Legislature.

As a result, West Virginia is now firmly and undoubtedly a "right-to-work" state. This status brings with it an obligation on the part of unions and employers alike to ensure that employees are not required, as a condition or continuation of employment, to become a member of or pay dues to a labor organization against their will.

The Bowles Rice Labor and Employment and Government Relations groups are intimately familiar with the workings of the Workplace Freedom Act, with firm members having been involved with the Act since its initial drafting. Members of the Bowles Rice team also co-authored two amicus curiae briefs submitted to the Supreme Court of Appeals of West Virginia in Morrisey v. W.Va. AFL-CIO, No. 19-0298 (W. Va. Apr. 21, 2020) ("Morrisey II").

We stand ready and willing to assist employers seeking to navigate the Workplace Freedom Act and are happy to answer any questions you may have regarding this significant legal decision.