Sean P. Redmond Sean P. Redmond
Vice President, Labor Policy, U.S. Chamber of Commerce


April 27, 2020


Score one more win for right-to-work laws. The Supreme Court of Appeals of West Virginia on April 21, 2020, issued a decision upholding the constitutionality of West Virginia’s right-to-work statute, delivering yet another judicial victory for worker freedom. The decision reversed a lower court’s finding that the state’s right-to-work statute violated unions’ rights of association, property rights, and liberty interests.

The judgement of the state Supreme Court did not exactly come as a surprise, as it was not the first time it had addressed the issue. After the West Virginia legislature enacted the Workplace Freedom Act in 2016, as its right-to-work law was named, organized labor did what it has always done when a right-to-work law passes—challenged it in court.

Hoping for a sympathetic judge, or perhaps shopping around for one, a group of labor unions and the state AFL-CIO filed a lawsuit in June 2016 seeking a preliminary injunction to prevent enforcement of the statute. After a perfunctory hearing in August 2016, Kanawha County Circuit Judge Jennifer Bailey reportedly announced from the bench that she was granting the petition and would not stay her order, not that she had her mind made up beforehand.

The litigation proceeded up to February 2017 when the judge issued a final injunction, prompting the state to appeal that decision to the state Supreme Court. That court heard arguments on September 5, 2017, and dealt a swift blow to the law's challengers when it rejected all of their arguments in a decision ten days later. Finding that the labor unions had no chance of winning on the merits and that the lower court had abused its discretion by issuing its injunction, the state Supreme Court overturned the injunction and sent the case back to the lower court.

Not to be deterred, however, the circuit judge issued a ruling in February 2019 granting summary judgement in favor of the unions’ position that the right-to-work law violated their “association rights, property rights, and liberty interests.” Once again, the state appealed to the state Supreme Court and asked for the circuit judge’s order to be stayed, which the court granted pending final resolution of the case.

Not to be deterred either, the state Supreme Court ultimately got the last word and dispensed with the labor unions’ arguments, saying “[p]articularly in light of the fact that … no additional evidence or arguments were presented to the circuit court by the parties, we reiterate our conclusion … that the grounds asserted by the [l]abor [u]nions, which were relied upon by the circuit court to find the ban of compelled dues to be unconstitutional, have been universally rejected in other contexts.”

The court also rejected labor unions’ familiar canard that right-to-work laws force them to represent nonmembers and rightly pointed out that labor unions make a voluntary choice to serve as an exclusive representative. Because of that, they “actually do receive compensation for their duty to represent all employees in a bargaining unit.… The fact that labor organizations do not like the choice presented to them under the law does not mean they are without a choice.”

Citing numerous other cases, including at the U.S. Supreme Court, the decision observed that right-to-work laws have been upheld each time they are challenged, and this one just adds one more win to that list. Unfortunately, Democrats in Congress hope to change that with the Protecting the Right to Organize Act, which would outlaw right-to-work protection. Let’s hope they don’t succeed in doing so.

About the authors

Sean P. Redmond

Sean P. Redmond

Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.

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