Posted on 02/28/2019 9:42:21 AM PST by buckalfa
CHARLESTON, W.Va. — A circuit judge has struck down key components of West Virginia’s 2016 right-to-work legislation.
Kanawha Circuit Judge Jennifer Bailey issued the opinion Wednesday, three years after the Legislature first passed the law.
“The new law will require unions and union officials to work, to supply their valuable expertise and to provide expensive services for nothing,” Bailey wrote in her 46-page ruling. “That is, in a word, arbitrary.”
The overriding issue is whether employees who join a workplace represented by a union have to pay some form of dues, whether they embrace union representation or not.
The unions argued that employees who don’t would receive the benefits of collective bargaining without providing financial support to pay for those activities. In other words, they said, the right-to-work law takes union property.
Bailey concluded that association would not be forced on anyone. Instead, the judge wrote, the fees collected by unions “essentially function as taxes on collective bargaining members for the costs of ‘legislative’ and governmental services.”
The judge also concluded that prohibiting a union from collecting such fees constitutes a taking of property: “It takes money from the union, and derivatively from its members, and essentially gives it to free riders.”
She wrote, “Membership is obviously the lifeblood of any labor organization. Members’ dues provide unions with nearly all of their revenues for operating expenses, and members’ commitment and participation give the organizations their capacity to represent workers effectively in dealing with employers.
“S. B. seriously hampers the unions’ ability to recruit new members and retain old ones.”
The judge went on to write, “If unions cannot exact agency fees, employees would be able to receive, without any cost to them, the full benefit of the union’s services in negotiating and administering the contract. And if workers can get those services for free, they would have no incentive to join the union or remain a member.
“In fact, those who do join or stay in a union would be paying a penalty for the privilege because their dues would have to be raised to underwrite the union’s services provided to the free riders.”
West Virginia labor unions celebrated the ruling.
“Judge Bailey was right-on with her ruling,” West Virginia AFL-CIO President Josh Sword stated.
“She made it very clear that this bill violates the West Virginia Constitutional rights of unions and individuals with regard to association, property and liberty.”
Bailey had issued an injunction in 2017 while she considered her ruling. The state Supreme Court overruled the injunction later that year, scolding the judge for taking so long.
The state’s unions failed to establish the likelihood of success based on the merits of three constitutional claims, wrote Justice Menis Ketchum in the court’s majority opinion in 2017.
“Because of the far-reaching effect of Senate Bill 1 and its potentially substantial impact upon public interests, in the future, we encourage the circuit court to act with greater celerity in bringing this case to a resolution,” Ketchum wrote in the majority opinion knocking down the injunction.
Since then, the Supreme Court has changed significantly. Ketchum faces sentencing on a federal wire fraud charge. Former Justice Allen Loughry, who was also in the majority on that opinion, has been sentenced to two years in prison on fraud charges. With them in the majority ruling was current Chief Justice Beth Walker.
Robin Davis, a justice who dissented, resigned from the court. Justice Margaret Workman, who dissented in part and concurred in part, remains on the court.
The current Supreme Court includes former Republican lawmakers Evan Jenkins and Tim Armstead, who was speaker of the House of Delegates when the law passed. The other new justice is former Circuit Judge John Hutchison.
Bailey’s opinion issued today takes some digs at the earlier Supreme Court ruling.
“The September 15, 2017 opinion, while criticizing the lower court’s reasoning in determining to issue the preliminary injunction, never clarified the standard for a preliminary injunction in this state, as no Syllabus Point has ever been adopted by the Supreme Court setting forth those standards.”
The state Attorney General’s Office was still assessing Bailey’s ruling today, comparing it to what the Supreme Court has said.
“We are reviewing the circuit court’s decision, comparing it to the Sept. 15, 2017, state Supreme Court ruling and will have more to say at the appropriate time,” said Curtis Johnson, a spokesman for the Attorney General’s Office.
Right-to-work legislation was such a priority during the 2016 session that it was officially Senate Bill 1. It was introduced in the Senate and sent to Judiciary on the very first day of the that year’s legislative session, Jan. 13.
It passed both houses and was sent to then-Gov. Earl Ray Tomblin by Feb. 8. He swiftly vetoed it Feb. 11, and both houses overrode his veto the very next day.
The law went into effect July 1, 2016. Judge Bailey approved a temporary injunction supported by unions on August 10, 2016. She then filed a written version of the preliminary injunction in early 2017.
That’s not arbitrary and it’s not ‘free labor’. It’s just business. If paying dues to the union and salaries to the union bosses make sense then the members will pay it. If it doesn’t make sense, then the workers shouldn’t pay it and the bosses have to figure out another way to get paid.
It’s like the owner of an overpriced coffee house complaining he doesn’t have enough income to cover his overhead... what, force the neighborhood residents to stop in once every two weeks?
The judge seems to think the union is a government entity.
When the county plows your street, your paying through tax for which you have no opt out.
This ruling is saying if I plow your street, then you owe me, because you benefited.
The quick argument against this ruling is that unions are active in publicly influencing elections, where the public (supposedly) benefits without paying for the union efforts.
In most unions, it’s a select group of members doing the collective bargaining, not union employees.
No she didn’t - she pulled a Roberts and claimed that forced union dues were like a tax, therefore legal, therefore unions established in conpanies could demand recompense.
On top of that she ordered the law blocked and dragged her heels through 2 elections to get a more favorable electoral climate to give her ruling.
There’s NOTHING in the Virginia law OR constitution that supports her arguments or her actions.
She’s a disgrace to those robes.
Yes that’s the way I understood it. But I thought those select members got paid for it, some kind of stipend - or better, a cushy supervisory role over the other members to mediate small disputes with management.
All I was saying is, a union should be like any other business. If it provides value the members will sign up and pay. If the members don’t find value, they should be free to quit the union. In either case it is up to the union and the delegates to demonstrate their worth.
The judge is right - you cannot take private property and force an organization to lend its use to others without compensation.
No one is forced to join a union. But if you do, if you have to pay dues for the protection and benefits it provides you.
Its not fair dues-paying members should have to subsidize free loaders.
So called right to work laws are invidious on their face.
Joining a union should not be a condition of employment. If a bunch of people want to get together and present themselves as a group for wages etc. Fine let’em do it. However if that same company offers me a job (I am not a union member!) and I negotiate my own conditions of employment I should be allowed to do that. Even if I am and later quit and then negotiate my conditions of employment I should be allowed to that. Unions should not be able to block nonunion employment. If the union had any use other then to make the “no-work” union bosses rich and allow some to exercise their inner thug then it could make a case to attract membership. Offer me something positive that makes me want to join don’t just threaten me!
What your arguing for is coercive form of wage slavery!
Now you have gone and made me use an online dictionary to look up the meaning of the word invidious.
As to your post, it shows there is a conservative philosophy conflict between the freedom of choice (right to work) versus a union being able to protect its intellectual property (negotiated contract benefits). I am afraid though you will find condemnation of your point of view as FR holds Hillary in more esteem than organized labor.
You’re arguing whether or not her decision was correct. That has nothing to do with my point.
That's absurd - the very definitiin of a union shop is that all employees must join the union or get fired. And if you choose not to be a member of the union, you shouldn't be required to pay it money.
No - I’m saying she didn’t cite the Virginia constitution or Virginia law - directly responding to your point.
I suppose that you gotta know what you are doing when you break a leg, or throw acid in someone’s face to blind them. Perhaps there is a science or art to it.
Nothing in the National Labor Relations Act requires a union to represent all employees. In fact, "members-only" representations and contracts are perfectly legal. A union can bargain for a contract on behalf of its membership, and leave all non-union employees free to bargain for themselves.
It is the union's choice to not do that, and to force themselves to be accepted as the "exclusive representative" of all employees in the defined unit. Union's choose to certify as "exclusive representatives" because it forces a company to bargain with them. But they are perfectly free, if they choose, to represent only their own members.
In other words, the supposed "free rider" problem of which unions complain is one of their own deliberate making. They then use the exclusive representation label on which they insisted to claim that others are "free-riding" on them.
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