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Kanawha judge rules parts of WV right-to-work law unconstitutional

West Virginia Gazette Staff Reports

A Kanawha County judge has declared part of West Virginia’s “right-to-work” law unconstitutional, more than two years after the state Legislature passed the anti-union measure.

In a ruling dated Wednesday, Circuit Judge Jennifer Bailey found that the law, officially known as the Workplace Freedom Act, was unconstitutional because it allows workers to refuse to pay dues, fees or other charges to a union, which nonetheless must still represent those workers.

That represents an unconstitutional taking of unions’ property, Bailey said, because they’re required by federal law to represent workers at union worksites whether those workers are union members or not. That argument was advanced by unions when they first filed the lawsuit in the summer of 2016.

“Other states have reached a consensus that labor performed for money is property,” Bailey wrote, and the right-to-work law “would take unions’ property without any compensation.”

Bailey also said the law “unnecessarily and unconstitutionally imposes an excessive burden on Plaintiffs’ associational rights.”

The judge noted that “membership is the lifeblood of any union,” and forcing unions to provide the same services to all workers, whether union members or not, “seriously hampers the unions’ ability to recruit new members and retain old ones.” She compared that burden placed on unions to measures enacted by Southern government agencies during the civil rights era in an attempt to discourage membership in groups like the NAACP.

“West Virginia clearly has legitimate and substantial interests in protecting workers from being forced to support political and ideological messages with which they disagree or to join an organization they do not support,” Bailey wrote. But she said those interests “can be, and have been, fully accomplished without taking the additional steps of prohibiting agency fees, and giving free riders something for nothing.”

The plaintiffs in the lawsuit, filed in August 2016, are several unions, including the West Virginia AFL-CIO; the United Mine Workers of America; Teamsters Local 175 of South Charleston; the West Virginia State Building and Construction Trades Council; and several locals of the International Brotherhood of Electrical Workers.

In a statement Wednesday evening, West Virginia labor leaders lauded Bailey’s decision.

We entered into this lengthy legal challenge nearly three years ago because we knew the law violated of the rights of West Virginia workers — and we simply won’t stand for that,” West Virginia AFL-CIO President Josh Sword said.

“We are very pleased with Judge Bailey’s ruling on the unconstitutional ‘Right to Work’ bill passed during the 2016 legislative session,” said Ken Hall, general secretary-treasurer of the International Teamsters Union and president of Teamsters Local 175. “This proposal, led by War on Working Families champion Mitch Carmichael and then-Speaker of the House Tim Armstead, was nothing more than an attack on our wages, benefits and working conditions.

“We’re glad they lost,” Hall added. “This is a win for all of West Virginia’s working families.”

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