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West Virginia court again finds right-to-work law’s ban on agency fees unconstitutional

By Pamela Wolf, J.D.

On remand from the state supreme court, the circuit court again found West Virginia’s controversial right-to-work law’s ban on union agency fees invalid under the state constitution.

A West Virginia state court has found invalid some of the provisions of a “right-to-work” law that has been the subject of continuing battles since its enactment on February 12, 2016, when the state legislature overrode then-Governor Earl Ray Tomblin’s earlier veto of the measure, which made West Virginia the 26th right-to-work state.

Unlawful “right-to-work” provisions. On February 27, 2019, in a summary judgment order, Judge Jennifer F. Bailey, presiding in the Kanawha County Circuit Court, found that certain provisions of S.B. 1 (amending the West Virginia Code)—those banning agency fees—violate the West Virginia Constitution: Code Sec. 21-1A-3 to the extent it authorizes employees to ‘refrain from paying any dues, fees, assessments, or other similar charges however denominated of any kind or amount to a labor organization or to any third party, including but not limited to, a charity in lieu of a payment to a labor organization.’

  • Code Sec. 21-5G-2 (subdivisions (2) and (3)) to the extent it prohibits requiring persons to:
  • ‘Pay any dues, fees, assessments or other similar charges however denominated of any kind or amount to a labor organization,’ or
  • ‘Pay 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 similar charges required of members of a labor organization.’

Tortured history. The right-to-work law not only resulted from an override of the governor’s veto, it also had suffered an earlier blow when the circuit court initially issued a preliminary injunction that temporary halted its implementation, meaning that it would not go into effect until the court ruled on the merits of the arguments offered by the unions that challenged the law.

The state attorney general appealed the preliminary injunction order to the state supreme court. While the appeal was pending, the legislature passed S.B. 330 in a move to correct some of the issues identified by the circuit court. Then Governor Jim Justice vetoed that measure, but his veto was overridden by the legislature.

On September 15, 2017, the state supreme court ruled that the new right-to-work law could be implemented, despite the constitutional challenges from the unions. Reversing and remanding the circuit court’s decision to issue a preliminary injunction, the state high court found the court below had abused its discretion in issuing the injunction because the unions were unlikely to succeed on the merits of their constitutional claims and no other appellate court in the country had struck down even one of the many similar laws of other states.

Bar on agency fees. But on remand, the circuit court pointed out among other things that, while other right-to-work laws had been upheld, most of those cases addressed whether states could bar union shops, not whether they could bar agency fees, the issue presented here.

And you know the rest of the story, at least thus far. Anticipating the possibility of appeal, the circuit court sua sponte stayed the effect of its summary judgment order for 30 days.

The case, West Virginia AFL-CIO v. Justice, is Nos. 16-C-959 and 16-C-969.