W.Va. right-to-work injunction overturned

PARKERSBURG — The West Virginia Supreme Court on Friday overturned a lower’s court’s injunction that blocked the implementation of a right-to-work law passed by the Legislature in 2016.

The court reversed a decision by Kanawha County Circuit Judge Jennifer Bailey, who granted the injunction requested by the West Virginia AFL-CIO and other unions that kept the Workplace Freedom Act, Senate Bill 1, from taking effect until a legal challenge to the law on its constitutionality was resolved.

“The unions failed to establish a likelihood of success on the merits of their three constitutional items,” the opinion written by Justice Menis Ketchum said. “The circuit court therefore abused its discretion in granting a preliminary injunction.”

Passed in February 2016, West Virginia was to become the 26th right-to-work state in July 2016, until the injunction was granted. Former Gov. Earl Ray Tomblin, a Democrat, vetoed the bill and the Republican controlled legislature over turned it.

Attorneys for the AFL-CIO and other labor unions said the Workplace Freedom Act was an illegal taking of union resources. Under the right to work and federal labor law, unions would represent non-union employees and unions could no longer be the sole collective bargaining representatives in negotiations.

The court lifted the injunction and remanded the case to the lower court.

Chief Justice Allen Loughry concurred and wrote a separate opinion. Justice Robin Davis dissented and Justice Margaret Workman dissented in part and also reserved the right to file a separate opinion.

Josh Sword, president of the West Virginia AFL-CIO, said the high court’s decision concerned the preliminary injunction, not the constitutionality.

“As stated previously, we maintain that this law violates provisions of the West Virginia Constitution that prohibit the taking of property from unions and their members without just compensation or due process,” Sword said. “When a majority of employees in a workplace, through a democratic process, vote to unionize, federal law requires unions to provide services to all employees, whether or not they choose to participate in that union.”

The U.S. Supreme Court and other courts have repeatedly rejected legal arguments similar to those challenges against the West Virginia law, which was the only right-to-work measure enjoined in the nation up until Friday, West Virginia Attorney General Patrick Morrisey, who represented the state, said.

“Today’s decision is a major victory for my office and for the hard working men and women of West Virginia,” Morrisey said. “The court’s decision makes clear that those who oppose the state’s right-to-work law are unlikely to succeed. The trial court should now act expeditiously to bring this litigation to a close.”

The House and Senate leadership on Friday also issued statements in support of the decision.

“In doing so, the court recognized that the unions’ arguments were baseless and that no court in this country has ever struck down this type of law,” House Speaker Tim Armstead said.

Senate President Mitch Carmichael said the “will and pleasure” of the Legislature for more than a year has has been unreasonably denied.

“With the dismissal of this clearly erroneous preliminary injunction, West Virginia’s working men and women are finally free to exercise their constitutional right to choose whether they want union representation,” Carmichael said. “Finally, the freedom to work and provide for one’s family is not beholden to a union membership card.”

Jason Huffman, state director of Americans for Prosperity — West Virginia, said no state has ever overturned a right-to-work law.

“Big labor’s selfish attempt to continue forced union membership on hard working West Virginians has failed. This is a long awaited win for workers across the Mountain State, who simply want to have the freedom to choose as to if they want to join a union or not without fear of losing their job,” Huffman said.

According to the opinion, a request for a preliminary injunction was filed on June 27, 2016, four days before the bill took effect on July 1. A hearing on the request was held on Aug. 10 and a proposed order was submitted to the circuit court on Aug. 19.

The circuit court entered the proposed order five months later on Feb. 24 after the attorney general threatened to seek mandamus relief from the Supreme Court, the opinion said.

“Because of the far-reaching effect of Senate Bill 1 and its potentially substantial impact upon public interests, in the future, we encourage the circuit court to act with greater celerity in bringing this case to a resolution,” the opinion said.


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