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WV AFL-CIO Joins Lawsuit Against “Right-to-Work”; Legal Argument Echoes Recent WI Ruling

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The West Virginia AFL-CIO has announced that it will join a coalition of unions challenging the constitutionality of the state’s newly enacted “Right-to-Work” law.  The lawsuit is expected to be filed in the next 30 days. 

Beyond debating the legality of “Right-to-Work,” known in West Virginia as the Workplace Freedom Act, the lawsuit claims that “there are a number of errors in the law that are clear indications of sloppy and hasty legislating.”

In a statement, West Virginia AFL-CIO President Kenny Perdue said:

“While we believe we have strong grounds for a constitutional challenge of the law, based in part on the recent circuit court decision on the Right to Work law in Wisconsin, we also have found several significant flaws in West Virginia’s Senate Bill 1 as it was written, amended and adopted.  Based on our reading of Senate Bill 1, the so-called Right to Work provisions included in the legislation do not apply to ANY private-sector employees that have collective bargaining agreements in the state of West Virginia.”

Wisconsin’s “Right-to-Work” law was temporarily overruled last month, on grounds that it is unconstitutional.  Though the decision is expected to be overturned by the state’s conservative supreme court, the legal argument used to assert the illegality of “Right-to-Work” — “the Takings Clause” — is experiencing a minor groundswell of credibility. In the West Virginia AFL-CIO’s statement, Secretary-Treasurer Josh Sword said that his group will use the same argument in the West Virginia courts:

“We maintain that such a Right to Work law generally violates the West Virginia Constitution’s prohibition of taking property without due process and compensation.  But we also believe that, based on the specific definitions within the legislation of whom the provisions apply to, no private-sector contracts will be affected, regardless of a court ruling on its constitutionality.

The lawsuit is also likely to claim that traditional procedurals were not used to pass “Right-to-Work” and that there are several flaws in the legislation. Prior to Republicans taking power of the state legislature for the first time in 83 years, most legislation of significance was referred to two major committees in both the House of Delegates and the Senate. This allowed a maximum number of members to closely deliberate on bills prior to them being sent to the floor for a final vote.  SB 1, the West Virginia Workplace Freedom Act, was only referred to one committee in each house.  

As Secretary-Treasurer Sword notes, the rush to pass the legislation could end up being its undoing:

“We know that a ‘Right to Work’ law is bad public policy that hurts working people – it lower wages, increases workplace deaths and does nothing to attract new jobs — yet somehow this was the legislative leadership’s top priority.  If this was the cornerstone of their legislative agenda, they sure didn’t do a very good job of dotting their ‘i’s and crossing their ‘t’s.”


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