The IBEW and working families in
West Virginia suffered a setback on Sept. 15, when the state’s Supreme Court
an injunction that prohibited implementation of a right-to-work law
and sent the case back to the circuit court level.
The law, which was passed after Republicans gained control of the both the state House and Senate going into the 2016 legislative session, now immediately goes into effect.
“It was pretty devastating, especially the way the head justice wrote his opinion,” Charleston Local 466 Business Manager Joe Samples said. “Basically, he laid out what side of the issue he’s on.”
|West Virginia Supreme Court Chief Justice Allen Loughery. Photo provided through a Flickr/Creative Commons agreement by The West Virginia Judiciary.
|West Virginia Supreme Court Justice Menis Ketchum. Photo provided through a Flickr/Creative Commons by The West Virginia Judiciary.
Chief Justice Allen Loughery wrote that issuing the injunction was “not merely imprudent, but profoundly legally incorrect.” Loughery noted the Taft-Hartley Act passed in 1947 allows states to prohibit compulsory union membership and 27 other states have passed right-to-work laws.
Then-Gov. Earl Ray Tomblin vetoed West Virginia’s law in February 2016, but the House and Senate needed just a simple majority to override it and promptly did so. Four months later, six IBEW local unions with jurisdiction in the state joined with other labor organizations and filed suit, claiming it was an unconstitutional search-and-seizure because it forced labor unions to provide representation to members who do not pay dues.
Kanawha County Circuit Judge Jennifer Bailey issued a preliminary injunction in their favor in August 2016, ruling that the law could not be enforced until it made its way through the legal process.
That provided some hope for working families, but that was quashed by the Supreme Court’s ruling. Three of the five justices voted in the majority, one dissented and another dissented over part of the ruling, which is permitted under West Virginia law. Neither of the dissenting judges issued a written opinion.
“The wisdom, desirability, and fairness of a law are political questions to be resolved in the legislature,” Justice Menis Ketchum wrote for the majority. “Those decisions may only be challenged in the court of public opinion and the ballot box, not before the judiciary.”
Right-to-work laws allow employees to opt out of paying union membership dues, even when they enjoy the benefits of a union contract. They undercut wages and benefits throughout a state, including union and nonunion workers alike. Conservative groups use them to punish unions and drain them of resources. Support for them is rarely through popularly-driven, grassroots efforts.
But even with the setback, the case is expected to continue. John S. Sword, the West Virginia AFL-CIO’s president, noted the court only overturned Bailey’s initial preliminary injunction.
“All parties in this case expect to be back before the state Supreme Court after Judge Bailey’s final order on our lawsuit is issued,” Sword told the Charleston Gazette-Mail. “We look forward to continuing the debate on the merits of our arguments before the justices at that time.”
IBEW local unions serving as co-plaintiffs are Wheeling Local 141, Huntington Local 317, Charleston Local 466, Clarksburg Local 596, Parkersburg Local 968 and Cumberland, Md., Local 307, which has jurisdiction in parts of West Virginia. Teamsters Local 175 in Charleston, the United Mine Workers and the West Virginia State Building & Construction Trades also are co-plaintiffs.
In other parts of the country, Missouri voters are fighting back against a right-to-work law passed earlier this year. They collected enough signatures from registered voters to force a statewide referendum on the law in November 2018. The law will not be enforced before the election.