Unions Challenge West Virginia Right-to-Work Law

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By Lawrence E. Dubé

June 29 — The West Virginia AFL-CIO and a coalition of labor unions challenged the constitutionality of a state right-to-work law that's set to take effect July 1 ( W. Va. AFL-CIO v. Tomblin, W. Va. Cir. Ct., No. 16-C-959, complaint filed 6/27/16 ).

The unions filed a state court lawsuit June 27 in the Kanawha County Circuit Court, alleging that the Workplace Freedom Act ( S.B. 1), which was enacted in February, would impose an unconstitutional taking of property on the labor organizations.

The unions say they would be required to provide services to “free riders” without compensation if the law goes into effect.

The unions also contend the right-to-work law interferes with employees' right of association, and they are requesting an injunction to block enforcement of the statute.

Law Targets Union Shop, Dues Provisions

S.B. 1 was enacted in February after the state legislature overrode Gov. Earl Ray Tomblin’s (D) veto of the measure.

The statute (Section 21-5G-2) provides that individuals and organizations may not be required, as a condition or continuation of employment, to join a labor organization or pay “any dues, fees, assessments or other similar charges, however denominated, of any kind or amount to any labor organization.”

The law also prohibits requiring any person to “[p]ay any charity or third party, in lieu of those payments, any amount that is equivalent to or a pro rata portion of dues, fees, assessments or other charges required of members of a labor organization.”

Any agreement between a labor organization and an employer that provides for excluding a person from employment because of union membership or nonmembership “is hereby declared to be unlawful, null and void, and of no legal effect,” according to Section 21-5G-3 of the statute.

Violating the Workplace Freedom Act is a misdemeanor punishable by a fine under the act, which also allows injured persons to sue for injunctive relief, compensatory and punitive damages, and attorneys' fees.

Unions Filed Lawsuit Against State Officials

Lawyers for the unions filed 11 separately numbered petitions in the state court, naming as plaintiffs the state AFL-CIO affiliate, the state building and construction trades council, the United Mine Workers of America, and Teamsters Union Local 175, as well as six locals of the International Brotherhood of Electrical Workers.

Amanda Gaines, an individual, is the 11th plaintiff. The complaint identifies her as a Local 175 member who is employed at a health care center whose collective bargaining agreement with the Teamster local is due to expire in July.

The complaint names as defendants Gov. Earl Ray Tomblin (D), Attorney General Patrick Morrisey, Acting Commissioner of Labor John Junkins and Kanawha County prosecutor Charles T. Miller.

The plaintiffs have already filed a motion to consolidate the actions into one proceeding.

Challenge Asserts Taking of Plaintiffs' Property

The unions allege that the law is designed to discourage employees from joining unions by giving them access to union representation and assistance at no cost.

Citing their own property interests in collective bargaining agreements, the plaintiffs allege the new legislation deprives them of property without compensation in violation of the state constitution.

The plaintiffs allege the purpose and effect of S.B. 1 is to burden unions in their efforts to organize workers. The legislation will impair the ability of unions to represent employees effectively, the complaint alleges.

The plaintiffs request a declaratory judgment that S.B. 1 violates the state constitution and ask that the court enter a preliminary injunction to prevent enforcement of the measure.

In a motion for a preliminary injunction that the plaintiffs filed with the initial complaints, the plaintiffs argued that “[r]equiring unions to expend their labors against their will without the ability to charge for those labors … deprives them of the liberty interests that they enjoy in those labors and consequently violates their rights to due process of law.”

Representatives of the West Virginia AFL-CIO and the state attorney general did not immediately respond to Bloomberg BNA's requests for comment on the lawsuit.

Vincent Trivelli and Robert Bastress in Morgantown, W. Va., represent the plaintiffs.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the petition is available at http://src.bna.com/gng and the motion for injunctive relief at http://src.bna.com/gnh.

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