State, national Chambers of Commerce weigh into WV right-to-work lawsuit (WV News)

June 27, 2019

CHARLESTON — The U.S. Chamber of Commerce weighed into the debate over the legality of West Virginia’s right-to-work law this month, arguing in an amicus brief that the law should not be overturned.

Elbert Lin, the state’s former Solicitor General, filed the brief last week on behalf of the national Chamber of Commerce.

“In sum, a right-to-work law can be highly beneficial to state economies, providing the West Virginia Legislature more than a reasonable basis for passing the Act and its ban on compulsory agency fees,” the brief reads. “The Circuit Court’s holding that the Act is an ‘arbitrary’ law that lacks any rational basis fails even the slightest scrutiny.”

The lawsuit has been brewing for years, and Josh Sword, president of the AFL-CIO, expects it will take several more months to be ultimately decided. Several other unions joined the AFL-CIO in filing the lawsuit, including the United Mine Workers of America, Teamsters Local 175 of South Charleston, the West Virginia State Building and Construction Trades Council and others.

West Virginia’s Legislature, under the leadership of Republicans, passed the so-called right-to-work law in 2016. It would allow employees to stop paying their union dues, even if other employees receive union representation.

The U.S. Chamber of Commerce, along with the state’s chamber of commerce and a handful of other conservative and pro-business organizations, filed briefs with the state Supreme Court in favor of the law’s constitutionality.

Kanawha Circuit Judge Jennifer Bailey decided in February that the law is unconstitutional because it allows employees to refuse to pay dues and fees to a union, but a union must still represent those workers.

Bailey wrote that the law runs afoul of the state Constitution because federal law requires unions to represent workers at union worksites even if there are some non-union members there.

“The reasoning in the Circuit Court’s decision, moreover, is nearly identical to the Unions’ briefing before this court roughly two years ago,” Lin wrote. “There is simply no reasonable ground for assessing the Unions’ claims differently today than this Court did previously, and the Circuit Court’s refusal to follow this Court’s earlier ruling should be swiftly reversed.”

Previously, in 2017, Bailey issued a stay to prevent the law from taking effect. The Supreme Court quickly issued an injunction to stop Bailey’s order from taking effect, chastising Bailey for the pace of her decision-making. That opinion, authored by Justice Menis Ketchum, said the unions failed to establish a likelihood of winning the case on constitutional claims.

The West Virginia Chamber of Commerce points to a recent decision from the Supreme Court of the United States dealing with forcing members to pay union dues in a separate amicus brief. In that 2018 case, Janus v. American Federation of State, County, and Municpal Employees, the justices held that forcing employees to pay union dues in the public sector violates their First Amendment rights to freedom of speech.

The state chamber’s brief said the Janus decision is “profoundly important” to the current case for a handful of different reasons.

“The circuit court’s holding that the constitutional rights of the Respondents are infringed by the Act are unsupportable,” the state chamber’s brief reads. “The circuit court’s decision is supported by no direct precedent because all direct precedent on the issues is contrary to the circuit court’s decision, including the holdings of this Court and the Supreme Court of the United States. Rather, the holding betrays a subscription to the notion that employees within the State of West Virginia are subject to ‘rulers’ whom they must pay in order to keep their jobs and those rulers are the Respondents.”

That idea betrays the state motto of Montani Semper Liberi (“Mountaineers are always free”), according to the briefing.

A date has yet to be scheduled for when the case might be heard before the Supreme Court. Justice Tim Armstead, who was the Speaker of the House of Delegates when lawmakers approved the right-to-work law, has recused himself from deciding the case.

Jake Jarvis can be reached by phone at 304-935-0144, on Twitter at @JakeJarvisWV or by email at [email protected].