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Jul
2016
8

WV Unions File “Right-to-Work” Lawsuit, Aim to Recreate WI Outcome, Eye SCOTUS Involvement

West Virginias "Right-to-work" protests were powerful, but felt short of swaying ideologues in the legislature

West Virginias “Right-to-work” protests were powerful, but felt short of swaying ideologues in the legislature


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Labor unions in West Virginia are trying to take back what’s theirs.

In Kanawha Circuit Court, 11 state labor unions have filed petitions claiming that the state’s new “Right-to-work” law amounts to an illegal seizure of their property and resources. The Workplace Freedom Act (SB1) was vetoed by Gov. Ear Ray Tomblin, but passed on an override vote in the House of Delegates.

The legislation allows employees in union shops to opt out of paying union dues. The lawsuit contends that amounts to an illegal taking of unions’ property and resources, since state and federal labor laws require unions to negotiate contracts and provide representation to the non-union employees at “considerable cost” to the unions.

“Requiring unions to provide services to free riders while simultaneously prohibiting unions from charging for those services necessarily takes union funds and directs them to be expended on behalf of third parties,” the lawsuit states. The lawsuit contends one intent of the law is to discourage employees from joining unions.

The lawsuit doesn’t stop there. It invokes Brown v. Board of Education as well as the 1st and 14th Amendments:

It compares the right-to-work law with laws passed in Southern states in the 1950s as part of the massive resistance to the U.S. Supreme Court’s desegregation orders in Brown v. Board of Education, with legislation intended to discourage membership in the NAACP — laws that were ultimately overturned in court for violating 1st and 14th Amendment rights of free expression and association.

The petition also cites other issues with the right-to-work law, including a definitions section that seems to limit the law to public employee unions, and an error in the bill’s title that could render it unconstitutional.

This comes on the heels of a favorable ruling in a similar lawsuit in the state of Wisconsin.

In April, a Wisconsin circuit court judge overturned that state’s right-to-work law in a case that similarly argued the law amounts to an unconstitutional taking of union property and resources. That ruling has been stayed, pending an appeal to the Wisconsin state Supreme Court.

“This is ultimately going to go to the U.S. Supreme Court, without question,” Sword said of the challenges to right-to-work laws. “The general question of whether it’s an illegal taking of property without due process will be ultimately decided by the U.S. Supreme Court.”

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