Opinion
No. 19-0298
04-21-2020
Patrick MORRISEY, West Virginia Attorney General, and the State of West Virginia, Defendants Below, Petitioners v. WEST VIRGINIA AFL-CIO; West Virginia State Building and Construction Trades Council, AFL-CIO; United Mine Workers of America, AFL-CIO; Chaffeurs, Teamsters, and Helpers, Local No. 175; Amanda Gaines; and International Brotherhood of Electrical Workers, AFL-CIO, Locals 141, 307, 317, 466, 596, and 968, Plaintiffs Below, Respondents
Patrick Morrisey, Attorney General, Lindsay S. See, Solicitor General, Charleston, West Virginia, Attorneys for the Petitioners. Mark H. Dellinger, Justin M. Harrison, Danielle M. Waltz, Benjamin J. Wilson, Jackson Kelly PLLC, Charleston, West Virginia, Attorneys for Amicus Curiae, Associated Builders and Contractors, Inc., West Virginia Chapter. Elbert Lin, Hunton Andrews Kurth LLP, Richmond, Virginia, Attorney for Amicus Curiae, The Chamber of Commerce of the United States of America. Matthew B. Gilliam, Springfield, Virginia, Attorney for Amici Curiae, Donna Harper and The National Right to Work Legal Defense Foundation, Inc. Richard R. Heath, Jr., Bowles Rice, LLP, Charleston, West Virginia, Attorney for Amici Curiae, The Cardinal Institute for West Virginia Policy and Americans for Prosperity. Derk A. Wilcox, Mackinac Center for Public Policy, Mackinac Center Legal Foundation, Midland, Michigan, J. Mark Adkins, Bowles Rice, LLP, Charleston, West Virginia, Attorneys for Amicus Curiae, The Mackinac Center for Public Policy. Mark A. Carter, Clayton T. Harkins, Dinsmore & Shohl LLP, Charleston, West Virginia, Attorneys for Amici Curiae, The West Virginia Chamber of Commerce and The West Virginia Manufacturers Association. Vincent Trivelli, The Law Office of Vincent Trivelli, Robert M. Bastress, Morgantown, West Virginia, Attorneys for the Respondents. Loree Stark, American Civil Liberties Union of West Virginia Foundation, Charleston, West Virginia, Attorney for Amicus Curiae, American Civil Liberties Union of West Virginia Foundation. Samuel B. Petsonk, Beckley, West Virginia, Attorney for Amicus Curiae, The West Virginia Employment Lawyers Association.
Patrick Morrisey, Attorney General, Lindsay S. See, Solicitor General, Charleston, West Virginia, Attorneys for the Petitioners.
Mark H. Dellinger, Justin M. Harrison, Danielle M. Waltz, Benjamin J. Wilson, Jackson Kelly PLLC, Charleston, West Virginia, Attorneys for Amicus Curiae, Associated Builders and Contractors, Inc., West Virginia Chapter.
Elbert Lin, Hunton Andrews Kurth LLP, Richmond, Virginia, Attorney for Amicus Curiae, The Chamber of Commerce of the United States of America.
Matthew B. Gilliam, Springfield, Virginia, Attorney for Amici Curiae, Donna Harper and The National Right to Work Legal Defense Foundation, Inc.
Richard R. Heath, Jr., Bowles Rice, LLP, Charleston, West Virginia, Attorney for Amici Curiae, The Cardinal Institute for West Virginia Policy and Americans for Prosperity.
Derk A. Wilcox, Mackinac Center for Public Policy, Mackinac Center Legal Foundation, Midland, Michigan, J. Mark Adkins, Bowles Rice, LLP, Charleston, West Virginia, Attorneys for Amicus Curiae, The Mackinac Center for Public Policy.
Mark A. Carter, Clayton T. Harkins, Dinsmore & Shohl LLP, Charleston, West Virginia, Attorneys for Amici Curiae, The West Virginia Chamber of Commerce and The West Virginia Manufacturers Association.
Vincent Trivelli, The Law Office of Vincent Trivelli, Robert M. Bastress, Morgantown, West Virginia, Attorneys for the Respondents.
Loree Stark, American Civil Liberties Union of West Virginia Foundation, Charleston, West Virginia, Attorney for Amicus Curiae, American Civil Liberties Union of West Virginia Foundation.
Samuel B. Petsonk, Beckley, West Virginia, Attorney for Amicus Curiae, The West Virginia Employment Lawyers Association.
Jenkins, Justice: In 2016, the West Virginia Legislature enacted the Workplace Freedom Act (sometimes "the Act"), making West Virginia the nation's twenty-sixth right-to-work state. For a second time, we consider the constitutionality of the Act, which prohibits collective bargaining agreements that require an employee to pay any dues, fees, assessments, or other similar charges as a condition of employment, or as a condition for the continuation of employment, when the employee has chosen not to join a union. In Morrisey v. West Virginia AFL-CIO ( Morrisey I ), we rejected the arguments made here in the context of a preliminary injunction and remanded the case for a final hearing.
Kentucky enacted right-to-work legislation in 2017, thus bringing the total number of right-to-work states up to twenty-seven.
239 W. Va. 633, 804 S.E.2d 883 (2017).
On remand and in the absence of any additional evidence or arguments, the Circuit Court of Kanawha County ruled that the Act unconstitutionally infringes upon the rights of the plaintiffs below, primarily labor unions that are member organizations of the AFL-CIO ("Labor Unions") who represent both private and government workers in West Virginia. So, Attorney General, Patrick Morrisey, and the State of West Virginia (collectively, "the State"), appeal the circuit court's summary judgment order finding that the Act infringes upon the Labor Unions’ rights to associate, as well as their liberty and property rights.
The AFL-CIO describes itself as a federation of labor organizations whose member organizations represent employees of employers in both the private and public sectors in the State of West Virginia.
We conclude that the Act does not violate constitutional rights of association, property, or liberty. Therefore, we reverse the circuit court's contrary rulings and remand this case for summary judgment in favor of the State consistent with this decision.
We express our appreciation for the contributions to our consideration of this important case of the numerous Amici Curiae who submitted briefs in this matter. The following Amici Curiae filed briefs in support of the State: The Chamber of Commerce of the United States of America; Donna Harper and the National Right to Work Legal Defense Foundation, Inc.; the Cardinal Institute for West Virginia Policy; Americans for Prosperity; the Mackinac Center for Public Policy; the West Virginia Chamber of Commerce; and the West Virginia Manufacturers Association. In addition, Amici Curiae, the American Civil Liberties Union of West Virginia Foundation and the West Virginia Employment Lawyers Association, filed briefs supporting the Labor Unions.
I.
FACTUAL AND PROCEDURAL HISTORY
To better understand the issues in this case, we begin by discussing the relevant federal labor statutes. We then summarize the history of West Virginia labor laws leading up to and including the provision currently under scrutiny. Finally, we review the procedural facts leading to this appeal.
A. Relevant Federal Labor Law
In 1935, Congress enacted the National Labor Relations Act, also known as the Wagner Act ("NLRA"). "[T]he conception of the Wagner Act was deeply rooted in labor's long struggle for the right to organize and bargain collectively." The Wagner Act: After Ten Years 5 (Louis G. Silverberg ed., The Bureau of Nat'l Affairs, Inc. 1945). It has been described as an effort to reverse "years of misuse of the injunction in labor disputes and the distortion of the anti-trust laws into anti-labor weapons." Id. The NLRA was legislation enacted "to encourage collective bargaining." Morrisey I .
See National Labor Relations (Wagner) Act, ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151 to 169 (2012) ).
239 W. Va. at 639, 804 S.E.2d at 889. See also National Labor Relations (Wagner) Act, ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151 to 169 (2012) ) (stating the purpose of the 1935 NLRA as, among other things, "to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce[.]").
Over the next twelve years, new concerns arose that the balance of power had shifted too far in the direction of organized labor. In an effort to restore some measure of equilibrium, the NLRA was amended in 1947 through the passage of the Taft-Hartley Act, which also re-designated chapter 7 of title 29 as the "Labor Management Relations Act of 1947" ("LMRA"). A sponsor of the LMRA has explained that,
See 29 U.S.C. § 141(a) (stating that chapter 7 may be cited as the " ‘Labor Management Relations Act, 1947’ ").
[o]riginally the employer had had all of the advantages over his employees. He could deal with them one at a time and refuse to recognize the union. He could stand a strike in most cases better than they could. The courts would freely grant injunctions against any effective action by the unions. This unfair situation resulted in the enactment of the Clayton Act, the Norris-LaGuardia Act, and the Wagner Act.
These laws, together with the consistently pro-labor attitude of the Executive, pro-labor interpretations, and pro-labor administration, more than redressed the balance, so that by 1946 employers, except for the largest concerns, were practically at the mercy of labor unions. As a practical matter, no legal remedy remained to the employer, the public, or even to the individual labor union member, against the acts of labor union leaders no matter how violent or arbitrary they might be.
The Taft-Hartley Law was an attempt to restore some equality between employer and employee so that there might be free collective bargaining. There can be no such bargaining if one party feels that the government and the courts will back up whatever unreasonable demand he may make. But it was equally important not to swing the pendulum back so far as to give the employer again an undue advantage....
The Senate Committee felt that our job was one of correcting inequalities in existing law[.] ...
Robert A. Taft, Forward to Fred A. Hartley, Jr., Our New National Labor Policy , The Taft-Hartley Act and the Next Steps , at xii (1948).
The Taft-Hartley Act made major changes to the NLRA. Several provisions of the resulting LMRA are significant to our resolution of this appeal. In particular, through the LMRA, Congress "prohibited a ‘closed shop,’ a union security agreement[ ] whereby an employer agrees to employ only union members." Morrisey I . Instead, the LMRA "permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees otherwise wish to become union members." Commc'ns Workers of Am. v. Beck .
"A ‘union security agreement’ is an agreement between a union and an employer that the employer will require all employees to undertake a specified level of support for the union as a condition of employment. R. Gorman, Labor Law 639 (1976)." Kenneth G. Dau-Schmidt, Union Security Agreements Under the National Labor Relations Act: The Statute, the Constitution, and the Court's Opinion in Beck , 27 Harv. J. on Legis. 51, 51 n.2 (1990).
487 U.S. 735, 738, 108 S. Ct. 2641, 2645, 101 L. Ed. 2d 634 (1988) (emphasis added). See also 29 U.S.C. § 158(a)(3) (2012) (stating, in part, that "nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title ....").
The term "exclusive bargaining representative" refers to a labor organization that has met certain criteria. Under the LMRA, representatives
designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.
29 U.S.C. § 159(a) (2012). Following this scheme,
the union is empowered to bargain collectively with the employer on behalf of all employees in the bargaining unit over wages, hours, and other terms and conditions of employment, § 9(a), 29 U.S.C. § 159(a), and it accordingly enjoys "broad authority ... in the negotiation and administration of [the] collective bargaining contract." Humphrey v. Moore , 375 U.S. 335, 342, 84 S. Ct. 363, 367, 11 L. Ed. 2d 370 (1964). This broad authority, however, is tempered by the union's "statutory obligation to serve the interests of all members without hostility or discrimination toward any," Vaca v. Sipes , 386 U.S. 171, 177, 87 S. Ct. 903, 910, 17 L. Ed. 2d 842 (1967), a duty that extends not only to the negotiation of the collective-bargaining agreement itself but also to the subsequent
enforcement of that agreement, including the administration of any grievance procedure the agreement may establish. Ibid.
Beck . Under the LMRA then, a labor organization designated as the exclusive bargaining representative is permitted to enter into an agreement with an employer that allows it to collect certain union dues and initiation fees from all employees of the bargaining unit as a condition of their continued employment, regardless of whether the employees choose to become members of the labor organization. Additionally, an exclusive bargaining representative is empowered to bargain with the employer on behalf of all employees in a bargaining unit and owes a corresponding duty to provide representation, without hostility or discrimination, to all bargaining unit employees. A labor organization that has not achieved exclusive bargaining representation status does not receive these benefits or owe the corresponding obligations.
See 29 U.S.C. § 159(a).
Importantly, however, the LMRA expressly preserves the freedom of states to enact laws that prohibit agreements requiring membership in a labor organization as a condition of employment:
(b) Agreements requiring union membership in violation of State law
Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.
29 U.S.C. § 164(b) (2012). Stated otherwise, "under federal law, states may decide whether to allow or prohibit employers and unions to negotiate agreements requiring compulsory union membership, or requiring nonunion employees to pay dues or fees to the union." Morrisey I . Having reviewed this background, we next look to the development of the relevant labor law in West Virginia.
See Morrisey I , 239 W. Va. at 639, 804 S.E.2d at 889 ("The United States Supreme Court has examined the interplay between [29 U.S.C. § 158(a)(3) ] and [29 U.S.C. § 164(b) ] and found that ‘Congress left the States free to legislate’ and adopt laws ‘restricting the execution and enforcement of union-security agreements,’ and even free to go so far as to ‘outlaw’ a union-security arrangement." (quoting Retail Clerks Int'l Ass'n, Local 1625, AFL-CIO v. Schermerhorn , 375 U.S. 96, 102-03, 84 S. Ct. 219, 222, 11 L. Ed. 2d 179 (1963) )).
B. Relevant West Virginia Labor Law
In 1965, the West Virginia Legislature enacted a two-section article addressing labor-management relations. The primary purpose of the article was the prevention or prompt resolution of labor disputes. In furtherance of this goal, the Commissioner of Labor was empowered to "investigate and mediate" certain labor disputes. W. Va. Code § 21-1A-2.
See W. Va. Code §§ 21-1A-1 and -2 (Michie Supp. 1965).
See W. Va. Code § 21-1A-1 (stating, in part, that "[i]t is hereby declared as the public policy of this State that the best interests of the people of the State are served by the prevention or prompt settlement of labor disputes ....").
Thereafter, in 1971, the "Labor-Management Relations Act for the Private Sector" ("1971 Labor-Management Relations Act") was enacted to replace the 1965 article. The 1971 Labor-Management Relations Act was "patterned after the provisions of the ‘National Labor Relations Act.’ " W. Va. Code § 21-1A-1(c) (Michie 1973). The declared purposes of the 1971 Labor-Management Relations Act, which remain the same today, are to encourage collective bargaining and to protect the rights of employees to organize for purposes of such bargaining:
See W. Va. Code §§ 21-1A-1 to -8 (Michie 1973).
See also United Steelworkers of Am., AFL-CIO, CLC v. Tri-State Greyhound Park , 178 W. Va. 729, 731, 364 S.E.2d 257, 259 (1987) ("In 1971, the Legislature enacted the West Virginia Labor-Management Relations Act for the Private Sector to supplement the federal act in areas such as those left by jurisdictional abstention on the part of the NLRB. 1971 W. Va. Acts ch. 82. Its provisions are patterned after the federal act, including in the creation of a labor relations board to promote and protect the rights granted thereunder.").
It is hereby declared to be the public policy of this State and the purposes of this article to encourage the practice and procedure of collective bargaining by protecting the exercise by employees of full freedom of association, self-organization and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection; to prescribe the legitimate rights of both employees and employers in their relations; to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other; to protect the rights of individual employees in their relations with labor organizations; to define and prescribe practices on the part of labor and management which are inimical to the welfare, prosperity, health and peace of the people of this State; and to protect the rights of the public in connection with labor disputes....
W. Va. Code § 21-1A-1(a) (Michie 1973). Notably, the 1971 Labor-Management Relations Act contained a provision titled "Rights of employees," under which it was recognized that employees could be subject to an agreement requiring their membership in a labor organization as a condition of their employment:
See also W. Va. Code § 21-1A-1(a) (LexisNexis 2019).
Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in subdivision (3), subsection (a), section 4 [§ 21-1A-4] of this article.
W. Va. Code § 21-1A-3 (Michie 1973). The provision referred to in West Virginia Code section 21-1A-3, i.e. , West Virginia Code section 21-1A-4, is titled "Unfair labor practices," and it contained a provision similar to that of the LMRA that allowed an employer and labor organization to execute an agreement, referred to above as a "union security agreement," that compelled employees, as a condition of employment, to become members of the labor organization after a certain period of time had lapsed and other conditions had been met:
See supra note 9 for the definition of a "union security agreement."
(a) It shall be an unfair labor practice for an employer:
....
(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment, to encourage or discourage membership in any labor organization: provided , however, that nothing contained in this article, or in any other statute of this State, shall preclude an employer from making an agreement with a labor organization (not established, maintained or assisted by any action defined in this section as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later ....
W. Va. Code § 21-1A-4(a)(3) (Michie 1973) (some emphasis added).
The additional conditions contained in West Virginia Code section 21-1A-4(a)(3) (Michie 1973) are in accordance with the LMRA and require the labor organization to have been certified as the exclusive representative of the bargaining unit and that the bargaining unit employees have not voted to rescind the authority of the labor organization.
Then, in 2016, the Legislature exercised the authority expressly granted under the LMRA and enacted Senate Bill 1 ("S.B. 1"). S.B. 1 amended two sections of the 1971 Labor-Management Relations Act, West Virginia Code sections 21-1A-3 and - 4, and also added a new article to Chapter 21 of the West Virginia Code, designated as article 5G, which is the Workplace Freedom Act.
See 29 U.S.C. § 164(b) (2012).
See S.B. 1, 82nd Leg., Reg. Sess. (W. Va. 2016); Vol. 1, 2016 W. Va. Acts 1096.
Most notably, while the amended version of West Virginia Code section 21-1A-3, the "Rights of employees" section, continues to protect the rights of employees to voluntarily organize, the statute no longer allows workers to be required, as a condition of their employment, to associate with, or pay dues to, a labor organization:
Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities, including the right to refrain from paying any dues, fees, assessments or other similar charges however denominated of any kind or amount to a labor organization or to any third party including, but not limited to, a charity in lieu of a payment to a labor organization.
W. Va. Code § 21-1A-3 (LexisNexis 2019). The amendment to West Virginia Code section 21-1A-4 likewise eliminated the authorization of "union security agreements" in West Virginia. W. Va. Code § 21-1A-4(a)(3) (LexisNexis 2019). Finally, S.B. 1 created the Act, which is codified at West Virginia Code sections 21-5G-1 to - 7. The Act vests workers with the right to choose for themselves whether they will become a member of a labor organization, rather than having that choice imposed upon them by virtue of an agreement between their employer and a labor organization:
This paragraph states that "(a) it shall be an unfair labor practice for an employer: ... (3) By discrimination in regard to hire or tenure of employment or any term or condition of employment, to encourage or discourage membership in any labor organization[.]" W. Va. Code § 21-1A-4(a)(3) (LexisNexis 2019).
A person may not be required, as a condition or continuation of employment, to:
(1) Become or remain a member of a labor organization;
(2) Pay any dues, fees, assessments or other similar charges, however denominated, of any kind or amount to any labor organization; or
(3) Pay any charity or third party, in lieu of those payments, any amount that is equivalent to or a pro rata portion of dues, fees, assessments or other charges required of members of a labor organization.
W. Va. Code § 21-5G-2 (LexisNexis 2019). In addition, the Act: (1) makes unlawful and nullifies any agreement that excludes any person from employment due to their association with, or lack of association with, any labor organization; (2) imposes a criminal penalty for violation of West Virginia Code section 21-5G-2 ; and (3) allows for civil relief to anyone who has been injured by a violation of West Virginia Code section 21-5G-2. The Act was to become effective on May 4, 2016; however, its application was prospective:
See W. Va. Code § 21-5G-3 (LexisNexis 2019), which provides that
[a]ny agreement, contract, understanding or practice, either written or oral, implied or expressed, between any labor organization and an employer or public body which provides for the exclusion from employment of any person because of membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor organization or employee organization of any kind is hereby declared to be unlawful, null and void, and of no legal effect.
See W. Va. Code § 21-5G-4 (LexisNexis 2019), directing that "[a]ny person who knowingly requires another person, as a condition or continuation of employment, to perform any of the conduct enumerated in section two of this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $5,000."
See W. Va. Code § 21-5G-5 (LexisNexis 2019), under which
[a]ny person injured as a result of any violation or threatened violation of this article shall have a cause of action, and, if proven in a court of competent jurisdiction, may be entitled to the following relief against a person or persons violating or threatening to violate this article:
(1) Compensatory damages;
(2) Costs and reasonable attorney fees, which shall be awarded if the injured person substantially prevails;
(3) Punitive damages in accordance with the provisions of section twenty-nine [§ 55-7-29], article seven, chapter fifty-five of this code;
(4) Preliminary and permanent injunctive relief; and
(5) Any other appropriate equitable relief.
This article applies to any written or oral contract or agreement entered into, modified, renewed or extended on or after July 1, 2016: Provided , That the provisions of this article do not otherwise apply to or abrogate a written or oral contract or agreement in effect on or before June 30, 2016.
W. Va. Code § 21-5G-7 (LexisNexis 2019).
From this point forward, when we refer to the Workplace Freedom Act or the Act, we include in that reference West Virginia Code sections 21-1A-3 and - 4, as amended by S.B. 1. As detailed below, this appeal stems from an action seeking a declaratory judgment finding that the Act violates certain provisions of the West Virginia Constitution and further seeking preliminary and permanent injunctions to prevent its enforcement.
C. Procedural History of Current Appeal
The Labor Unions, initiated the action underlying this appeal on June 27, 2016, when they filed a petition, followed by an amended petition, seeking a declaratory judgment finding that the Act violated certain provisions of the West Virginia Constitution and thereby infringed upon their rights to associate, as well as their liberty and property rights. In addition, the Labor Unions sought preliminary and permanent injunctions to prevent enforcement of the Act. The amended petition named the following defendants: the Governor of the State of West Virginia, currently the Honorable James C. Justice ("the Governor"); the West Virginia Attorney General, the Honorable Patrick Morrisey ("the Attorney General"); and the Kanawha County Prosecuting Attorney. The Prosecuting Attorney was subsequently dismissed by agreed order. The State of West Virginia intervened. (The defendants below, distinct from the petitioners herein, will be collectively referred to as "the State Defendants").
There is one respondent/plaintiff below who is an individual, Amanda Gaines. According to the petition filed in the circuit court, Ms. Gaines is a member of the Chauffeurs, Teamsters, and Helpers Local Union No. 175 and an employee of Stonerise Healthcare Systems dba Clarksburg Center LLC. The collective bargaining agreement governing Ms. Gaines's employment was set to expire on July 31, 2016. Therefore, any newly negotiated agreement would be subject to the provisions of the Act. See W. Va. Code § 21-5G-7 (LexisNexis 2019).
The Labor Unions claimed below that the Act violated article III, sections 1, 3, 7, 9, 10, and 16, and article VI, section 30, of the West Virginia Constitution.
The Labor Unions also sought a declaration that the Act did not apply to collective bargaining laws or agreements in the building and construction industries; however, this claim was rendered moot by a subsequent legislative amendment that deleted the portion of the former West Virginia Code section 21-5G-7 that referred to the building and construction industry. See S.B. 330, 83rd Leg., Reg. Sess. (W. Va. 2017); Vol. 1, 2017 W. Va. Acts 1211. No issue related to this amendment has been raised on appeal.
The Honorable Earl Ray Tomblin was Governor of the State of West Virginia at the time this action was filed. He was succeeded in January 2017 by the Honorable James C. Justice.
The defendants below, who we refer to as "the State Defendants," include the Governor. While the Governor is a party to this appeal, he did not join the petition for appeal. Instead, the Governor filed a summary response stating that he takes no position on the merits of this appeal and acknowledging that he is constitutionally obligated to faithfully execute the laws of the state of West Virginia as determined by this Court's decision in this case. Because the Governor did not join in the arguments asserted in the petition for appeal, when we refer to the parties who joined in that petition, we will use "the State."
On August 10, 2016, the circuit court held a hearing on the Labor Unions’ motion for a preliminary injunction. The Labor Unions presented only one witness, Ken Hall ("Mr. Hall"), who is the president of the Chauffeurs, Teamsters and Helpers Local No. 175 ("Teamsters Local No. 175") and General Secretary Treasurer of the International Brotherhood of Teamsters. Through the testimony of Mr. Hall, the Labor Unions admitted six documents into evidence. Two of these documents were charts prepared at Mr. Hall's behest by a bookkeeper employed by Teamsters Local No. 175. One of these charts depicted the expenses incurred, purportedly by the Teamsters Local No. 175, over a four-year period between 2013 and 2016. It further reported the total income for the union during those years and calculated the amount of dollars the union would lose if its membership dropped by ten, fifteen, or twenty percent. Finally, it estimated the additional dues that would be charged to union members to make up for those potential losses. The second chart reported the amount spent on arbitration proceedings during the same four-year period, and, according to Mr. Hall's testimony, further reported the amount of the fees charged by arbitrators for the five most expensive arbitrations that occurred during those years. Of the four remaining documents, one was a report by the U.S. Bureau of Labor Statistics titled "Union affiliation of employed wage and salary workers by state," which provided annual averages for the years 2014 and 2015. A second document was a chart prepared at Mr. Hall's request by the "director of strategic research at the international union in Washington[.]" Mr. Hall testified that it repeated the information provided by the U.S. Bureau of Labor Statistics, and added information regarding the number of bargaining unit employees who were not paying dues to the union. Also admitted was a "Certification of Representative" from the National Labor Relations Board certifying that the Teamsters Local No. 175 had been certified as the exclusive collective-bargaining representative for certain workers employed by Airgas USA, LLC, in Charleston, West Virginia. Finally, the Labor Unions admitted a report, titled "The Economic Impact of Right to Work Policy in West Virginia," that had been prepared by the Bureau of Business & Economic Research of the West Virginia University College of Business and Economics, and was funded by the West Virginia Legislature. Based, in part, upon this report, Mr. Hall estimated generally that union membership drops by about twenty percent in states that have enacted right-to-work legislation. After the close of testimony, and arguments were presented by the parties, the circuit court announced from the bench:
Portions of the copy of this document contained in the record are illegible.
The record copy of this document also is largely illegible.
I believe at this time that it would be appropriate to award a preliminary injunction as to the operation of the provisions of Senate Bill 1.
I think there have been arguments raised such that the four factors that this Court is to consider [in deciding whether to grant a preliminary injunction] have been met by the plaintiffs.
The circuit court additionally denied a motion to stay its ruling.
The parties then filed cross-motions for summary judgment, and the circuit court heard arguments on those motions on December 2, 2016. Following the hearing, the circuit court deferred ruling on the motions and instructed the parties to submit findings of fact and conclusions of law to support their respective positions.
On February 23, 2017, the circuit court entered its order granting the preliminary injunction requested by the Labor Unions. The next day, the circuit court issued a superseding and final order granting the preliminary injunction. On February 27, 2017, the State filed its notice of appeal. Oral arguments were held and the case was submitted on September 5, 2017.
The superseding order made minor changes to the February 23, 2017 order.
In its majority opinion, issued on September 15, 2017, this Court examined each of the three categories under which the Labor Unions challenged the constitutionality of the Act — associational rights, property rights, and liberty interests — under a "comparative hardship" analysis that focused on the plaintiffs’ likelihood of success on the merits. Based, in part, upon the lack of authority supporting the Labor Unions’ position, other state authority, and decisions by the United States Supreme Court that had rejected similar constitutional attacks on right-to-work legislation, the Morrisey I Court concluded that the Labor Unions had failed to establish, beyond a reasonable doubt, any likelihood of success on the merits as to any of the three theories they argued in support of a finding that the Act is unconstitutional. Based on this conclusion, the Morrisey I Court found that the circuit court had abused its discretion by granting the Labor Unions’ request for a preliminary injunction, reversed the circuit court's order, dissolved the preliminary injunction, and remanded the case for final resolution.
On remand, the parties advised the circuit court that they would present no additional evidence or arguments and that they agreed there were no disputed issues of material fact. By order entered on February 27, 2019, the circuit court disposed of the case on the existing evidence by granting partial summary judgment in favor of the State Defendants and partial summary judgment in favor of the Labor Unions. Despite this Court's ruling in Morrisey I , the circuit court granted summary judgment in favor of the Labor Unions on their claims that the ban on compelled dues contained in West Virginia Code sections 21-1A-3 and 21-5G-2 violated the West Virginia Constitution because it infringed upon labor organizations’ association rights, property rights, and liberty interests. The circuit court, sua sponte, stayed the effect of the order for a period of thirty days from the entry thereof to accommodate any potential appeal of the order. Then, on March 27, 2019, the State filed a motion asking this Court to stay enforcement of the circuit court's February 27, 2019, order. The Court granted the motion for stay by order entered on March 27, 2019. This appeal by the State followed.
The circuit court granted summary judgment in favor of the State Defendants with respect to two issues. First, the circuit court granted summary judgment to the State Defendants on the Labor Unions’ claim that the Act violated article 6, section 30 of the West Virginia Constitution by embracing more than one object. In addition, the circuit court granted summary judgment to the State Defendants on the Labor Unions’ claim that they were exempt from the operation of the Act by language that had been included in the Act pertaining to the building and construction industry. Because the relevant language was removed by the 2017 amendments to the Act, the claim was deemed moot, and summary judgment was granted to the State Defendants as to that claim. The Labor Unions have not appealed these rulings.
We find the term "compelled dues" is a more accurate label for what is often identified as "agency fees." The term "agency fees" is used to refer to the compelled dues required of members of a collective bargaining unit who do not wish to formally join a labor organization that has been designated as the exclusive bargaining representative for the bargaining unit. See Harris v. Quinn , 573 U.S. 616, 624, 134 S. Ct. 2618, 2625, 189 L. Ed. 2d 620 (2014) (explaining that an "agency-fee provision" is "a provision under which members of a bargaining unit who do not wish to join the union are nevertheless required to pay a fee to the union"). These compelled dues typically are lower in comparison to the dues paid by voluntary members of the labor organization because they may include only that portion of dues that is expended by the labor organization for collective bargaining related expenses. See Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 2456, 201 L. Ed. 2d 924 (2018) (describing "agency fee" as "a percentage of the full union dues"). The United States Supreme Court has found that, under the NLRA, compelled dues may not be used for political purposes over the objection of the worker paying the dues. Commc'ns Workers of Am. v. Beck , 487 U.S. 735, 108 S. Ct. 2641, 101 L. Ed. 2d 634.
II.
STANDARD OF REVIEW
This appeal from circuit court rulings that granted summary judgment is subject to de novo review. In conducting this plenary review, we are mindful that
See Syl. pt. 1, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo. ").
[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. pt. 4, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994). Accord Syl. pt. 2, Williams v. Precision Coil, Inc. , 194 W. Va. 52, 459 S.E.2d 329 (1995). We also observe that, "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y. , 148 W. Va. 160, 133 S.E.2d 770 (1963).
Because this appeal requires us to pass upon the constitutionality of certain statutory provisions, we note that "[t]he constitutionality of a statute is a question of law which this Court reviews de novo. " Syl. pt. 1, State v. Rutherford , 223 W. Va. 1, 672 S.E.2d 137 (2008). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). However, we also must be cognizant of the separation of powers and the near plenary authority of the Legislature to act within constitutional boundaries:
In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative[,] and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.
Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer , 149 W. Va. 740, 143 S.E.2d 351 (1965). In other words,
See also Syl. pt. 1, Foster v. Cooper , 155 W. Va. 619, 186 S.E.2d 837 (1972) ("The Constitution of West Virginia being a restriction of power rather than a grant thereof, the [L]egislature has the authority to enact any measure not inhibited thereby.").
"[a]cts of the Legislature are presumed to be constitutional, and courts will interpret legislation in any reasonable way which will sustain its constitutionality. State ex rel. City of Charleston v. Coghill , 156 W. Va. 877, 207 S.E.2d 113 (1973) ; State ex rel. Appalachian Power Co. v. Gainer , 149 W. Va. 740, 143 S.E.2d 351 (1965). Thus where a statute is susceptible of more than one construction, one which renders the statute constitutional, and the other which renders it unconstitutional, the statute will be given the construction which sustains constitutionality. State ex rel. Slatton v. Boles , 147 W. Va. 674, 130 S.E.2d 192 (1963), Board of Education v. Board of Public Works , 144 W. Va. 593, 109 S.E.2d 552 (1959)." State ex rel. Frieson v. Isner , 168 W. Va. 758, 778-79, 285 S.E.2d 641, 655 (1981).
Syl. pt. 2, State ex rel. Frazier v. Meadows , 193 W. Va. 20, 454 S.E.2d 65 (1994).
Mindful of the foregoing standards, we address the particular issues raised in this appeal.
III.
DISCUSSION
The State assigns error to three rulings made by the circuit court, which found that the legislative enactments at issue violate the West Virginia Constitution by infringing upon the Labor Unions’ rights of association, property rights, and liberty interests. We address each of these issues in turn.
The State additionally asserts on appeal that the circuit court's decision conflicts with federal labor law. Because we overrule the circuit court's decision on other grounds, we do not reach this issue.
A. Association Rights
The right to voluntarily associate has long been an inherent and distinguishing quality of American life. As French scholar Alexis de Tocqueville once observed,
[i]n no country in the world has the principle of association been more successfully
used, or more unsparingly applied to a multitude of different objects, than in America. Besides the permanent associations which are established by law under the names of townships, cities, and counties, a vast number of others are formed and maintained by the agency of private individuals.
Alexis de Tocqueville, Democracy in America 170 (Henry Reeve, trans 1838). In this case, however, Labor Unions would have us link an organization's desire to compel an individual to associate to the individual's right to associate. This we will not do.
In addressing the Labor Unions’ claim of association rights, we first review the particular constitutional provisions at issue in this case. We then summarize the challenged circuit court ruling and the arguments presented by the parties. Finally, we analyze the issue presented and provide our conclusion.
1. Association Rights under article III, sections 7 and 16 of the West Virginia Constitution. The circuit court concluded that prohibiting compelled dues under the Workplace Freedom Act and the West Virginia Labor Management Relations Act violated rights of association guaranteed to the Labor Unions under article III, sections 7 and 16 of the West Virginia Constitution. Article III, section 7 addresses freedom of speech and provides that
See W. Va. Code § 21-5G-2.
See W. Va. Code§ 21-lA-3.
[n]o law abridging the freedom of speech, or of the press, shall be passed; but the Legislature may, by suitable penalties, restrain the publication or sale of obscene books, papers, or pictures, and provide for the punishment of libel, and defamation of character, and for the recovery, in civil actions, by the aggrieved party, of suitable damages for such libel, or defamation.
This provision has been found to incorporate the protection of an individual's associational rights.
See Pushinsky v. W. Va. Bd. of Law Exam'rs , 164 W. Va. 736, 748-49, 266 S.E.2d 444, 451 (1980) (concluding that questions that inquired into beliefs and associations of applicant for admission to the West Virginia State Bar unconstitutionally infringed upon applicant's association rights guaranteed under West Virginia Constitution article III, section 7 ).
Similarly, article III, section 16 of the West Virginia Constitution includes a right "to consult for the common good": "The right of the people to assemble in a peaceable manner, to consult for the common good, to instruct their representatives, or to apply for redress of grievances, shall be held inviolate." W. Va. Const. art. III, § 16. We have recognized that "[t]he protections inherent and explicit in this state constitutional provision [ article III, section 16 of the West Virginia Constitution ] parallel associational ... protections found under the first amendment." Woodruff v. Bd. of Trs. of Cabell Huntington Hosp. , 173 W. Va. 604, 609, 319 S.E.2d 372, 378 (1984) (addressing association rights of public employees).
See also Watson v. W. Va. Dep't of Health & Human Res. , No. 11-0191, 2012 WL 2924123, at *3 n.3 (W. Va. Jan. 19, 2012) (memorandum decision) (commenting that "[a]rticle III, section 16 of the West Virginia Constitution secures the right to association," and finding no violation of an employee's right of intimate association). These authorities support the existence of an individual's right to associate. The parties to this appeal do not provide support for the proposition that, under the West Virginia Constitution, a Labor Organization has a protected right to associate that is distinct from the right of its individual members. Nevertheless, for the purposes of our discussion of this case, we will assume, without deciding, that such a right exists.
No violation of federal constitutional rights has been asserted by the Labor Unions in this litigation. However, "a state may not interpret its constitutional guarantee [that] is identical to a federal constitutional guarantee below the federal level[.]" Adkins v. Leverette , 161 W. Va. 14, 19-20, 239 S.E.2d 496, 499 (1977). Because of the federal constitutional threshold, consideration of federal precedent is relevant in addressing corresponding protections under our own constitution. The circuit court found that such precedent would merely "provide a floor for interpretation of the Article III protections in §§ 7 and 16." Relying on a finding made by this Court in Pushinsky v. West Virginia Board of Law Examiners , the circuit court summarily concluded that limitations on the power of West Virginia to curtail association rights are " ‘more stringent than those imposed on the states by the Constitution of the United States.’ " (Quoting Pushinsky , 164 W. Va. at 745, 266 S.E.2d at 449 ).
The circuit court cited two additional opinions by this Court, Woodruff v. Board of Trustees of Cabell Huntington Hospital , 173 W. Va. 604, 611, 319 S.E.2d 372, 379 (1984), and West Virginia Citizens Action Group, Inc. v. Daley , 174 W. Va. 299, 324 S.E.2d 713 (1984), but the court failed to explain how these cases direct a more stringent standard in this instance. The Labor Unions’ appellate brief likewise provides only a bare assertion.
We agree with the principle that "we may interpret our own Constitution to require higher standards of protection than afforded by comparable federal constitutional standards." Pauley v. Kelly , 162 W. Va. 672, 679, 255 S.E.2d 859, 864 (1979) (citing Adkins , 161 W. Va. at 19-20, 239 S.E.2d at 499 ). However, we disagree that the West Virginia Constitution affords greater protection of association rights in the context of the instant matter than does the United States Constitution.
See also Syl. pt. 2, Pauley , 162 W. Va. 672, 255 S.E.2d 859 ("The provisions of the Constitution of the State of West Virginia may , in certain instances , require higher standards of protection than afforded by the Federal Constitution." (emphasis added)).
The Puchinsky case relied upon by the circuit court involved the West Virginia Board of Law Examiners refusing to process an application for admission to the West Virginia State Bar because the applicant refused to answer "questions relating to his advocacy of or knowing affiliation with organizations advocating the violent or forceful overthrow of the government." Pushinsky , 164 W. Va. at 737, 266 S.E.2d at 445. This Court found heightened protections were warranted because of a unique provision contained in our state constitution:
[I]n view of our state constitutional provision regarding the right of the majority to "reform, alter, or abolish" an inadequate government, we think that the West Virginia Constitution offers limitations on the power of the state to inquire into lawful associations and speech more stringent than those imposed on the states by the Constitution of the United States.
Pushinsky , 164 W. Va. at 744-45, 266 S.E.2d at 449 (emphasis added). Such grounds for heightened protections have not been presented in this case. The circuit court and the Labor Unions have failed to direct us to a provision of the West Virginia Constitution, or provided any other rationale, under which the protection of association rights claimed by a labor organization may be entitled to more stringent treatment than that provided by the United States Constitution. Accordingly, for the purpose of our analysis of the associational rights at issue in this case, we find no grounds to apply a more stringent level of protection than that afforded under the United States Constitution.
See also Woodruff , 173 W. Va. at 611, 319 S.E.2d at 379 (applying heightened protections with respect to the waiver of fundamental rights under the West Virginia Constitution because "[n]o parallel provision to [article III, section 1 of the West Virginia Constitution ] appears in the United States Constitution. Therefore, with respect to the waiver of fundamental constitutional rights, our state constitution is more stringent in its limitation on waiver than is the federal constitution." (emphasis added)). Article III, section 1 of the West Virginia Constitution prohibits waiver of certain constitutional freedoms and rights.
"The U.S. Supreme Court has recognized two types of constitutionally protected association under the First Amendment: intimate[ ] and expressive." Beverly Hills Suites LLC v. Town of Windsor Locks , 136 F. Supp. 3d 167, 186 (D. Conn. 2015). This case involves expressive association, which has been described as "a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties." Roberts v. U.S. Jaycees , 468 U.S. 609, 618, 104 S. Ct. 3244, 3249, 82 L. Ed. 2d 462 (1984). With these basic principles in mind, we consider the circuit court's order in light of the arguments herein raised.
Under the right of "intimate association," it is recognized that
choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty.
Roberts v. U.S. Jaycees , 468 U.S. 609, 617-18, 104 S. Ct. 3244, 3249, 82 L. Ed. 2d 462 (1984).
2. Summary of the circuit court's ruling and the parties’ arguments relating to association rights. The circuit court held that the prohibition of compelled dues contained in the Act, and the associated enforcement of that ban through criminal penalties and civil liabilities, infringe on the association rights of labor organizations and their members in violation of article III, sections 7 and 16 of the West Virginia Constitution. The circuit court reasoned that the prohibition of compelled dues hampers the Labor Unions’ ability to recruit new members and to retain existing ones because workers would be able to receive the full benefit of union representation without incurring any cost and would, thus, have no incentive to join the union or remain a member. The circuit court further opined that those who do remain members of the union would pay a penalty, because their dues would necessarily be increased to underwrite the union's services provided to the bargaining unit employees who have chosen not to join the union. Acknowledging that "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," the circuit court found that protection of those interests has been accomplished by requiring labor organizations "to reimburse [their] members working under union shop contracts for that portion of their dues spent on advocacy of causes with which they disagree." The circuit court rejected the argument that workers have a right not to associate that is protected by the Act, and reasoned that the payment of compelled dues by nonmembers of the union is not the equivalent of union membership.
See W. Va. Code § 21-1A-3 and § 21-5G-2(2).
See W. Va. Code § 21-5G-4 for the criminal penalties referred to by the circuit court, and W. Va. Code § 21-5G-5 for the civil relief provided. Although the circuit court referenced these criminal penalties and civil liabilities that may be imposed for violations of the Act, the circuit court did not provide any analysis related to the constitutionality of these provisions. Likewise the parties have not provided arguments related to these provisions in their briefs to this Court, but instead only mention them in passing. Nevertheless, we note that the United States Supreme Court has recognized that, when the Taft-Hartley amendments were being considered, twelve states had enacted some form of right-to-work legislation "about which Congress seems to have been well informed during the 1947 debates—[and which] had a wide variety of sanctions, including injunctions, damage suits, and criminal penalties. " Retail Clerks Int'l Ass'n, Local 1625, AFL-CIO v. Schermerhorn , 375 U.S. 96, 100, 84 S. Ct. 219, 221, 11 L. Ed. 2d 179 (emphasis added) (footnote omitted). The Court went on to explain that,
[i]n light of the wording of [29 U.S.C. § 164(b) ] and this legislative history, we conclude that Congress in 1947 did not deprive the States of any and all power to enforce their laws restricting the execution and enforcement of union-security agreements. Since it is plain that Congress left the States free to legislate in that field, we can only assume that it intended to leave unaffected the power to enforce those laws. Otherwise the reservation which Senator Taft felt to be so critical would become empty and largely meaningless.
Schermerhorn , 375 U.S. at 102, 84 S. Ct. at 222, 11 L. Ed. 2d 179 (emphasis added). Therefore, it is apparent that the imposition of criminal penalties and civil liability does not render the Act unconstitutional.
The circuit court cited Commc'ns Workers of Am. v. Beck , 487 U.S. 735, 108 S. Ct. 2641, 101 L. Ed. 2d 634, as support for its conclusion. See supra note 39 for the relevant holding of Beck . The circuit court additionally cited Chicago Teachers Union, Local No. 1, AFT, AFL-CIO v. Hudson , 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232 (1986), which established basic requirements for the procedure to be used by labor organizations to ensure that compelled dues from employees who objected to expenditures unrelated to collective bargaining were not used for impermissible purposes.
The State argues that the circuit court erred in finding that the Act infringes on the right of the Labor Unions to associate because there is nothing in the Act that prevents a person from making a voluntary choice to associate with a union or to pay union dues. Instead, the Act removes the Labor Unions’ ability to force nonconsenting employees to pay any form of dues. The circuit court relied heavily upon a line of cases involving the NAACP wherein various methods, such as forced disclosure of the identities of NAACP members, lead to efforts to retaliate against those who chose to become members. The State contends that the Act's prohibition of compelled dues differs significantly from the circumstances presented in the Civil Rights era cases since prohibiting compelled dues simply does not result in retribution or punitive action as was at issue in the NAACP cases. In addition, quoting from this Court's prior decision in Morrisey I , the State observes that the circuit court's adoption of the Labor Unions’ argument in favor of forcing nonconsenting employees to pay for union activities was erroneous insofar as the argument is "nearly identical to one rejected by the United States Supreme Court almost seven decades ago." Morrisey I , 239 W. Va. at 640, 804 S.E.2d at 890. The State further contends that the circuit court failed to meaningfully consider a line of precedent foreclosing the idea that a statute potentially making it harder to recruit members violates a union's associational rights by concluding that a "legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." Regan v. Tax'n with Representation of Wash. , 461 U.S. 540, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983). Finally, the State argues that the Act protects the rights of employees by giving them the freedom not to associate.
The Morrisey I Court was referring to Lincoln Federal Labor Union No. 19129, American Federation of Labor v. Northwestern Iron & Metal Co. , 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212 (1949).
The Labor Unions respond that the Act violates their right to associate with employees to advance workers’ causes. The Labor Unions equate the portion of the Act banning compelled dues with measures used to curtail membership in the NAACP civil rights cases discussed above. Reflecting on the long history of unions and their members receiving constitutional protection for the exercise of their associational rights, i.e. , through court decisions that struck laws directed at blocking unions’ organizing efforts or requiring union organizers to register with the state in an effort to stop or punish those organizers, the Labor Unions argue that these decisions provide a floor for interpreting West Virginia's constitution. The Labor Unions contend that, because of their obligation as the exclusive bargaining agents to represent all members of a bargaining unit, depriving them of compelled dues would mean that workers who pay nothing would receive free representation. Those workers would then have no incentive to join the union or remain members, while workers who join a union or remain members will pay a penalty in the form of higher dues needed to underwrite the union services provided to bargaining unit employees who have chosen not to join the union. The Labor Unions contend that workers already are adequately protected from being forced to support political and ideological messages with which they disagree by federal law that requires unions to reimburse workers who are under a union shop contract for that portion of their dues spent on advocacy of causes with which they disagree.
We already have rejected this argument in our preceding discussion wherein we conclude that the Labor Unions have provided us with no persuasive grounds in this case for giving the West Virginia Constitution a more stringent application than the United States Constitution under the circumstances herein presented.
In support of this proposition, the Labor Unions cite Beck , 487 U.S. 735, 108 S. Ct. 2641, 101 L. Ed. 2d 634, and Chicago Teachers Union, 475 U.S. 292, 106 S. Ct. 1066, 89 L. Ed. 2d 232.
3. Analysis. As we explained above, states are expressly authorized by the NLRA to enact laws that prohibit closed shop agreements as well as contracts that require compelled dues of any kind as a condition of employment or as a condition for the continuation of employment. Indeed, twenty-seven states have enacted either a constitutional amendment, a statute, or both, directed at protecting an employee's right to work without being compelled to join a union either as a condition of employment or as a condition for the continuation of employment. To be more specific, ten states have right-to-work provisions in their constitutions. Eight States have enacted statutory right to work provisions. Most notably, seventeen states have provisions that, like West Virginia, expressly prohibit the requirement of compelled dues as a condition of employment or as a condition for the continuation of employment. Even though right-to-work laws have existed for over seventy years, and most prohibit compelled dues, "the unions have not directed us to any federal or state appellate court that, in over seven decades, has struck down such a law." Morrisey I , 239 W. Va. at 637, 804 S.E.2d at 887.
See Ala. Const. art. I, § 36.05 (adopted 2016) (declaring that no person may be denied employment due to membership or nonmembership in labor organization, nor may employment be conditioned upon the payment of dues, fees, or other charges of any kind to a labor organization); Ariz. Const. art. XXV (adopted 1946) (providing, in part, that no person may be denied employment due to nonmembership in a labor organization); Ark. Const. amend. XXXIV, § 1 (adopted 1944) (barring employment discrimination based upon union membership or nonmembership and barring compelled payment of dues to any labor organization as a condition of employment); Fla. Const. of 1968 art. I, § 6 (establishing right-to-work that is not denied or abridged on account of membership or nonmembership in labor organization); Kan. Const. art. XV, § 12 (adopted 1957) (declaring that no person shall be denied the opportunity to obtain employment due to membership or nonmembership in a labor organization and prohibiting agreements that exclude persons from employment on same grounds); Miss. Const. art 7, § 198A (adopted 1960) (proclaiming public policy against, among other things, any agreement requiring union membership or payment of dues, fees, or other charges, as a condition of employment or continued employment); Neb. Const. art. XV, § 13 (adopted 1946) (protecting right-to-work without requirement related to membership in or affiliation with a labor organization); N.D. Const. art. I, § 7 (adopted 1889) (pronouncing that every citizen of North Dakota shall be free to obtain employment wherever possible); Okla. Const. art. XXIII, § 1A (adopted 2001) (prohibiting employment from being conditioned upon becoming or remaining a member of a labor organization, or payment of dues, fees, assessments, or other charges to a labor organization); S.D. Const. art. VI, § 2 (adopted 1946) (preserving right-to-work without requirement for membership in any labor organization).
See Ariz. Rev. Stat. Ann. § 23-1302 (2016; enacted 1947) (disallowing the denial of opportunity to obtain or retain employment based on nonmembership in a labor organization); Fla. Stat. Ann. § 447.03 (West 2013, enacted 1974) (preserving the right of employees to "self-organization, to form, join, or assist labor unions or labor organizations or to refrain from such activity"); Iowa Code Ann. § 731.2 (West 2013; enacted 1977) (declaring it unlawful to refuse or deny employment based on a refusal to join or affiliate with a labor organization); Nev. Rev. Stat. § 613.250 (2017; enacted 1953) (barring denial of employment or continuation of employment based upon nonmembership in a labor organization); N.D. Cent. Code § 34-01-14 (2014; enacted 1947) (instructing that the right-to-work may not be denied based on membership or nonmembership in any labor organization); S.D. Codified Laws § 60-8-3 (2015; enacted 1947) (preserving right of any person to work without membership in labor organization); Tex. Labor Code Ann. § 101.301 (West 2015; enacted 1995) (declaring that the right-to-work may not be denied because of membership or nonmembership in a labor organization); Wyo. Stat. Ann. § 27-7-109 (2019; enacted 1963) (ordering that no person may, as a condition of employment or continuation of employment, be required to become or remain a member of a labor organization).
See Ala. Code § 25-7-34 (LexisNexis 2016; enacted 1953) (prohibiting, inter alia , payment of any dues, fees, or other charges to a labor organization as a condition of employment); Ark. Code Ann. § 11-3-303 (2012; enacted 1947) (proscribing denial of employment based upon membership in, affiliation with, nonmembership in, or non-affiliation with a labor organization; also proscribing compelled dues or other monetary consideration to a labor organization); Ga. Code Ann. § 34-6-23 (2017; enacted 1947) (voiding, as contrary to public policy, any contractual provision between an employer and a labor organization that requires, as a condition of employment, any employee to be or remain a member or an affiliate of a labor organization or to pay any fee, assessment, or other sum of money to a labor organization); Idaho Code § 44-2003 (2014; enacted 1985) (providing, in part, that no person shall be required to become or remain a member of a labor organization, or be required to pay any dues, fees, assessments, or other charges of any kind to a labor organization as a condition of employment); Ind. Code Ann. § 22-6-6-8 (LexisNexis 2019; enacted 2012) (specifying that a person may not, as a condition of employment or continued employment, be required to become or remain a member of a labor organization, or to pay dues, fee, assessments, or other charges to a labor organization); Ky. Rev. Stat. Ann. § 336.130 (LexisNexis Supp. 2019; enacted 2017) (stating that employment shall not be conditioned upon membership in a labor organization or payment of any dues, fees, assessments, or similar charges); La. Stat. Ann. § 23:983 (2010; enacted 1976) (providing that no person, as a condition of employment, shall be required to become or remain a member of a labor organization, or be required to pay any dues, fees, assessments, or other charges to a labor organization); Mich. Comp. Laws Serv. § 423.14 (LexisNexis 2013; enacted 2012) (mandating that no individual shall, as a condition of obtaining or continuing employment, be required, inter alia , to remain or become a member of a labor organization or pay any dues, fees, assessments, or other charges to a labor organization); Miss. Code. Ann. § 71-1-47 (West 2009; enacted 1954) (upholding, inter alia , a right-to-work without requirement of membership in a labor organization or payment of dues, fees, or other charges to labor organization); Neb. Rev. Stat. § 48-217 (2010; enacted 1947) (making operative constitutional provisions against conditioning employment upon, inter alia, membership in or affiliation with a labor organization or payment of a fee to a labor organization); N.C. Gen. Stat. § 95-80 (2017; enacted 1947) (announcing that no person shall be required to become or remain a member of a labor organization as a condition of employment or the continuation of employment) and N.C. Gen. Stat. § 95-82 (2017; enacted 1947) (prohibiting employers from requiring payment of dues, fees, or other charges to a labor organization as a condition of employment); S.C. Code Ann. § 41-7-30 (1986; enacted 1954) (stating that it is unlawful for an employer to condition employment upon becoming or remaining a member of a labor organization or paying any fees, dues, assessments, or other charges to such organization); Tenn. Code Ann. § 50-1-201 (2014; enacted 1947) (specifying that it is unlawful to deny or attempt to deny employment to any person due to, inter alia , resignation from or refusal to join or affiliate with any labor organization) and Tenn. Code Ann. § 50-1-203 (2014; enacted 1947) (making it unlawful to exclude a person from employment for failure to pay dues, fees, or other charges to labor organization); Utah Code Ann. § 34-34-1 to -7 (LexisNexis 2019; enacted 1969) (establishing public policy that the right-to-work may not be abridged because of membership or nonmembership in a labor organization; and prohibiting employers from conditioning employment upon membership in labor organization, or upon payment of dues, fees, or other charges to labor organization); Va. Code Ann. § 40.1-60 (2013; enacted 1970) (declaring that no person shall be required, as a condition of employment, to become or remain a member of a labor organization) and Va. Code Ann. § 40.1-62 (2013; enacted 1970) (prohibiting employers from conditioning employment upon employee's payment of dues, fees, or other charges to a labor organization); Wis. Stat. Ann. § 111.04 (West 2018; enacted 2015) (stipulating that employment may not be conditioned upon membership in a labor organization or the payment of any dues, fees, or other charges to labor organization).
Particularly in light of the fact that, on remand from Morrisey I , no additional evidence or arguments were presented to the circuit court by the parties, we reiterate our conclusion from Morrisey I that the grounds asserted by the Labor Unions, 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. As this Court recognized in Morrisey I , "the constitutional freedom of association argument proffered by the unions is nearly identical to one rejected by the United States Supreme Court almost seven decades ago." 239 W. Va. at 640, 804 S.E.2d at 890 (referencing the prohibition of closed shop agreements addressed in Lincoln Fed. Labor Union No. 19129, A.F. of L. v. Nw. Iron & Metal Co. , 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212 (1949) ). In Lincoln Federal , the United States Supreme Court declined to find that laws prohibiting closed shop agreements, contracts whereby employers agreed to hire only workers who were members of the labor organization, were unconstitutional infringements on labor organizations’ rights of free speech, assembly, and petition. See Lincoln Fed. , 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212.
While the rights asserted in Lincoln Federal differ from those asserted in the instant matter, the rationale of the Supreme Court is, nevertheless, persuasive in the context of association rights, and even touched on those rights. Similar to the argument presented here, in Lincoln Federal the union argued that a closed shop was "indispensable to achievement of sufficient union membership to put unions and employers on a full equality for collective bargaining, a closed shop is consequently ‘an indispensable concomitant’ of ‘the right of employees to assemble into and associate together through labor organizations....’ " Lincoln Fed. , 335 U.S. at 530, 69 S. Ct. at 254, 93 L. Ed. 212. The Lincoln Federal Court observed that "[n]othing in the language of the laws indicates a purpose to prohibit speech, assembly, or petition. Precisely what these state laws do is to forbid employers acting alone or in concert with labor organizations deliberately to restrict employment to none but union members." Id. The Court additionally commented that "[i]t is difficult to see how enforcement of this state policy could infringe the freedom of speech of anyone, or deny to anyone the right to assemble or to petition for a redress of grievances." Id. Ultimately, the Lincoln Federal Court found that
The various First Amendment rights under the United States Constitution bear a relationship to each other. See, e.g. , NAACP v. State of Ala. ex rel. Patterson , 357 U.S. 449, 460, 78 S. Ct. 1163, 1171, 2 L. Ed. 2d 1488 (1958) ("It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.").
[t]he constitutional right of workers to assemble, to discuss and formulate plans for furthering their own self interest in jobs cannot be construed as a constitutional guarantee that none shall get and hold jobs except those who will join in the assembly or will agree to abide by the assembly's plans.
Id. at 531, 69 S. Ct. at 254, 93 L. Ed. 212 (emphasis added). Lincoln Federal dealt with closed shop agreements as opposed to compelled dues, but the underlying premise is the same. In Lincoln Federal the Court rejected the argument that the government infringed upon the rights of the labor organizations by refusing to compel union membership as a condition of employment. For similar reasons, we find that the Legislature's refusal to force workers to pay compelled dues to labor organizations as a condition of employment, or as a condition for the continuation of employment, does not infringe on the right to associate.
As we previously stated, in note 46 supra , for purposes of our analysis of this case, we do not determine whether organizations such as labor unions have a right to associate separate and distinct from an individual's right that is protected by the West Virginia Constitution.
We also agree with the State's contention that the circuit court's reliance upon Civil Rights era cases in finding an infringement upon the Labor Unions’ claimed association rights under the circumstances presented in this matter is misplaced. Those cases primarily involved efforts by the states to compel disclosure of NAACP members so that those members could be subjected to retribution for their membership in the organization. Such state action would, if permitted, have had a chilling effect on the willingness of individuals to join or remain a member of the civil rights organization:
We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by [NAACP] members of their right to freedom of association. [The NAACP] has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of [the NAACP's] Alabama membership is likely to affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
NAACP v. State of Ala. ex rel. Patterson , 357 U.S. 449, 462-63, 78 S. Ct. 1163, 1172, 2 L. Ed. 2d 1488 (1958). No such punitive action directed toward members of a labor organization for the purposes of retaliating or deterring membership is present in the instant matter. In this regard, the Act is neutral. As we previously stated, "we see nothing in [the Act] that prevents a person from making a voluntary choice to associate with a union or to pay union dues." Morrisey I , 239 W. Va. at 640, 804 S.E.2d at 890. There likewise is nothing within the Act to discourage or prevent labor organizations from soliciting workers to join their organization, nor does the Act facilitate retaliation upon those who voluntarily choose to become union members.
See also Gibson v. Fla. Legis. Investigation Comm. , 372 U.S. 539, 549, 83 S. Ct. 889, 895, 9 L. Ed. 2d 929 (1963) (noting that, in a companion case that arose from the same hearings and was apparently based upon the same record, the Florida Supreme Court "took notice of the ‘considerable’ evidence of possible or probable reprisals and deterrent effect on the N.A.A.C.P. resulting from involuntary disclosure of affiliation with the organization"); NAACP v. Button , 371 U.S. 415, 435-36, 83 S. Ct. 328, 339-40, 9 L. Ed. 2d 405 (1963) (concluding a Virginia statute that effectively barred the NAACP from recruiting plaintiffs to challenge segregation in schools violated First Amendment freedoms, and commenting that "[w]e cannot close our eyes to the fact that the ... civil rights movement has engendered the intense resentment and opposition of the politically dominant white community of Virginia; litigation assisted by the NAACP has been bitterly fought. In such circumstances, a statute broadly curtailing group activity leading to litigation may easily become a weapon of oppression, however evenhanded its terms appear. Its mere existence could well freeze out of existence all such activity on behalf of the civil rights of Negro citizens."); Louisiana ex rel. Gremillion v. NAACP , 366 U.S. 293, 295-96, 81 S. Ct. 1333, 1335, 6 L. Ed. 2d 301 (1961) (acknowledging that some affiliates of NAACP in Louisiana filed membership lists and that, after those filings, members were subjected to economic reprisals); Shelton v. Tucker , 364 U.S. 479, 486 & 486 n.7, 81 S. Ct. 247, 251 & 251 n.7, 5 L. Ed. 2d 231 (1960) (finding statute that, as a condition of employment at a state-supported school or college, compelled every teacher to disclose in an affidavit every organization to which he or she had belonged or regularly contributed violated teachers’ federal association rights; noting that "[t]he record contains evidence to indicate that fear of public disclosure is neither theoretical nor groundless"; and observing that testimony showed one particular group "intended to gain access to some of the Act 10 affidavits with a view to eliminating from the school system persons who supported organizations unpopular with the group"); Bates v. City of Little Rock , 361 U.S. 516, 523-24, 80 S. Ct. 412, 417, 4 L. Ed. 2d 480 (1960) (commenting that "[o]n this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members. There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names." (footnote omitted)).
In fact, during its 2020 Regular Session, the West Virginia Legislature enacted, and the Governor has already approved, new legislation entitled "The Protect Our Right to Unite Act." See S.B. 16, 84th Leg., Reg. Sess. (W. Va. 2020) ("Right to Unite Act"). The Right to Unite Act, which will be codified at West Virginia Code sections 1-7-1 to -4, operates to protect individual rights of West Virginia citizens to privacy in their associations by prohibiting public agencies from requiring any nonprofit entity to disclose its donor or membership information. In addition, the Right to Unite Act prohibits a public agency from releasing such information if it is obtained, and exempts such donor and membership information from the disclosure requirements of the West Virginia Freedom of Information Act. Thus, the Right to Unite Act will protect the right of West Virginia citizens, including union members, to privately associate in much the same way as the civil rights cases discussed above.
We readily acknowledge that there are different methods by which government action may infringe on the right of association.
Government actions that may unconstitutionally infringe upon this freedom [of expressive association] can take a number of forms. Among other things, government may seek to impose penalties or withhold benefits from individuals because of their membership in a disfavored group, e.g. , Healy v. James , 408 U.S. 169, 180-184, 92 S. Ct. 2338, 2345-2347, 33 L. Ed. 2d 266 (1972) ; it may attempt to require disclosure of the fact of membership in a group seeking anonymity, e.g. , Brown v. Socialist Workers '74 Campaign Committee, supra , 459 U.S. 87, 91-92, 103 S. Ct. 416, 419-421, 74 L. Ed. 2d 250 (1982) ; and it may try to interfere with the internal organization or affairs of the group, e.g. , Cousins v. Wigoda , 419 U.S. 477, 487-488, 95 S. Ct. 541, 547, 42 L. Ed. 2d 595 (1975) [ (involving state election code that conflicted with guidelines of the Democratic National Party for selection of delegates for its national convention) ].
Roberts , 468 U.S. at 622-23, 104 S. Ct. at 3252, 82 L. Ed. 2d 462. The Act simply does not infringe upon any association rights the Labor Unions have attempted to claim here. Instead, it operates to protect the right of workers to not be forced to associate against their will. "Freedom of association ... plainly presupposes a freedom not to associate." Roberts , 468 U.S. at 623, 104 S. Ct. at 3252, 82 L. Ed. 2d 462. By protecting workers from being forced to fund labor organizations as a condition of their employment, or as a condition for the continuation of employment, the Legislature does not thereby infringe on any association right labor organizations may claim under the West Virginia Constitution. "[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right[.]" Regan v. Tax'n With Representation of Wash. , 461 U.S. at 549, 103 S. Ct. at 2003, 76 L. Ed. 2d 129. Thus, "although government may not place obstacles in the path of a [person's] exercise of ... freedom of [association], ... the Constitution does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom." Id. at 549-50, 103 S. Ct. at 2003, 76 L. Ed. 2d 129 (quotations and citations omitted). In other words, "unions have no constitutional entitlement to the fees of nonmember-employees." Davenport v. Wash. Educ. Ass'n , 551 U.S. 177, 185, 127 S. Ct. 2372, 2379, 168 L. Ed. 2d 71 (2007).
The Roberts Court found a Minnesota Act that required Minnesota chapters of the United States Jaycees to admit women as full voting members infringed on the Jaycees’ expressive association rights by interfering with the internal organization or affairs of the group, but found further that the infringement was justified. 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462.
Although the Labor Unions seek to distinguish membership from paying "fees" for services rendered, the United States Supreme Court has equated the payment of compelled dues with membership in the labor organization:
Under the second proviso to § 8(a)(3) [of the Wagner Act & reaffirmed under the Taft-Hartley amendments], the burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues. It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. "Membership" as a condition of employment is whittled down to its financial core. This Court has said as much before in Radio Officers’ Union v. Labor Board , 347 U.S. 17, 41, 74 S. Ct. 323, 336, 98 L. Ed. 455 [ (1954) ] ....
N.L.R.B. v. Gen. Motors Corp. , 373 U.S. 734, 742, 83 S. Ct. 1453, 1459, 10 L. Ed. 2d 670 (1963) (emphasis added). Accord Beck , 487 U.S. at 745, 108 S. Ct. at 2648, 101 L. Ed. 2d 634 ("Taken as a whole, § 8(a)(3) permits an employer and a union to enter into an agreement requiring all employees to become union members as a condition of continued employment, but the ‘membership’ that may be so required has been ‘whittled down to its financial core.’ N.L.R.B. v. General Motors Corp. , 373 U.S. 734, 742, 83 S. Ct. 1453, 1459, 10 L. Ed. 2d 670 (1963). The statutory question presented in this case, then, is whether this ‘financial core’ includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not." (footnote omitted)).
The Labor Unions assert that they do not claim any constitutional entitlement to the fees, i.e. , compelled dues, of nonmember employees. We disagree. By claiming that the denial of compelled dues violates their association rights, the Labor Unions necessarily claim they are constitutionally entitled to those dues.
It is also noteworthy that the Supreme Court has "never suggested that the First Amendment is implicated whenever governments place limitations on a union's entitlement to [compelled dues] above and beyond [restricting the use of those compelled dues to expenses germane to collective bargaining]." Davenport , 551 U.S. at 185, 127 S. Ct. at 2379, 168 L. Ed. 2d 71. In fact, the Court has found this restriction to be "a minimum set of procedures." Id. The Court has clarified that "[t]he constitutional floor for unions’ collection and spending of [compelled dues] is not also a constitutional ceiling for state-imposed restrictions." Id. Thus, the Labor Unions’ argument that the Act's ban on compelled dues goes too far because workers’ rights already are protected by restrictions on the expenditures for which those funds may be used is unsound. Clearly a state may enact legislation that provides greater protections to its workers without offending constitutional rights. Indeed, the fact that "courts have an obligation to interfere with a union's statutory entitlement no more than is necessary to vindicate the rights of nonmembers does not imply that legislatures (or voters ) themselves cannot limit the scope of that entitlement. " Id. at 186, 127 S. Ct. at 2379, 168 L. Ed. 2d 71 (emphasis added). The Davenport Court even went so far as to acknowledge that "it would be constitutional for Washington to eliminate [compelled dues] entirely." Id. at 184, 127 S. Ct. at 2378, 168 L. Ed. 2d 71. To the extent that the prohibition of compelled dues may make it more difficult for labor organizations to recruit members, it does not thereby violate any right of association that they may be guaranteed.
Cf. Smith v. Ark. State Highway Emp., Local 1315 , 441 U.S. 463, 465-66, 99 S. Ct. 1826, 1828, 60 L. Ed. 2d 360 (1979) (finding state action that impaired or undermined the effectiveness of the union, but was "[f]ar from taking steps to prohibit or discourage union membership or association," was not an impairment that the Constitution prohibited); S.C. Educ. Ass'n v. Campbell , 883 F.2d 1251, 1256 (4th Cir. 1989) (finding, with respect to the legislative denial of payroll deductions for payment of labor organization dues, that "[a]lthough loss of payroll deductions may economically burden the [labor organization] and thereby impair its effectiveness, such a burden is not constitutionally impermissible," and observing that the subject "legislation does not prohibit, regulate, or restrict the right of the [labor organization] or any other organization to associate, to solicit members, to express its views, to publish or disseminate material, to engage in political activities, or to affiliate or cooperate with other groups").
Finally, we note that, after this Court handed down the decision in Morrisey I , the United States Supreme Court changed its position on the propriety of agency-shop agreements and their associated compelled dues. In Janus v. American Federation of State, County and Municipal Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018), the Supreme Court issued an opinion finding an Illinois statute that authorized public-sector unions to assess compelled dues was unconstitutional. In doing so, the Janus Court overruled its prior holding in Abood v. Detroit Board of Education , 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), which had upheld the constitutionality of an agency-shop arrangement. Rejecting the Abood decision as inadequately reasoned and an anomaly, the Janus Court found that the Illinois statute violated "the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." Janus at ––––, 138 S. Ct. at 2460, 201 L. Ed. 2d 924. Although Janus did not analyze the impact striking down the statute had on a labor organization's claim of association rights, it nevertheless provides powerful support for statutes that bar the collection of compelled dues. By striking down the Illinois compelled dues statute, the Court highlighted the importance of protecting the rights of workers to be free from financially supporting labor organizations whose views they do not share. The fact that forcing private workers to subsidize a labor organization may not implicate matters of substantial public concern at the same level as the public workers at issue in Janus , we find this distinction of no moment. "Simply put, [t]he differences between public- and private-sector collective bargaining do not translate into differences in First Amendment rights." Robinson v. State of N.J. , 741 F.2d 598, 606 (3d Cir. 1984) (quotations and citations omitted). Workers in the private sector have no less of a right than public sector employees to be free from forced association with a labor organization. "There is no doubt that union workers enjoy valuable rights of association and assembly that are protected by the First Amendment.... But ... that right alone cannot operate as an offensive weapon to wrest rights from others." Sweeney v. Pence , 767 F.3d 654, 670 (7th Cir. 2014).
For the foregoing reasons, we now hold that the provisions of West Virginia Code sections 21-1A-3 (2019) and 21-5G-2 (2019) that prohibit requiring a person, as a condition of employment or as a condition for the continuation of employment, to pay any dues, fees, assessments, or other similar charges to a labor organization do not violate any right of association under article III, sections 7 and 16 of the West Virginia Constitution.
B. Property Rights
Our analysis of the circuit court's ruling on the Labor Unions’ property rights involves the Takings Clause of the West Virginia Constitution and is divided into three sections. We first review the particular constitutional provision at issue. We then summarize the challenged circuit court ruling and the arguments presented by the parties. Finally, we analyze the issue presented and provide our conclusion. 1. Takings governed by article III, section 9 of the West Virginia Constitution. Article III, section 9 of the West Virginia Constitution, also known as the Takings Clause, states:
Private property shall not be taken or damaged for public use, without just compensation; nor shall the same be taken by any company, incorporated for the purposes of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged for public use, or for the use of such corporation, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law: Provided , That when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders.
It has been recognized that "[t]his provision of our Constitution [is a] limitation[ ] upon the authority of the sovereignty to take private property for public use." Bd. of Ed. of Kanawha Cty. v. Campbells Creek R. Co. , 138 W. Va. 473, 476, 76 S.E.2d 271, 273 (1953). Furthermore, "[u]nder our Constitution, private property cannot be taken for private use, either with or without compensation." Syl. pt. 1, Hench v. Pritt , 62 W. Va. 270, 57 S.E. 808 (1907).
We have explained that "[a] ‘property interest’ includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings." Syl. pt. 3, Waite v. Civil Serv. Comm'n , 161 W. Va. 154, 241 S.E.2d 164 (1977), overruled on other grounds by W. Va. Dep't of Educ. v. McGraw , 239 W. Va. 192, 800 S.E.2d 230 (2017). We also have clarified that services rendered are property capable of being taken by the State. Because services rendered are a classification of property capable of being taken, we consider whether or not the prohibition of compelled dues contained in the Act, and the companion provision set out in the West Virginia Labor Management Relations Act, authorize an unconstitutional taking of services rendered by the Labor Unions. We begin by summarizing the circuit court's ruling and the arguments of the parties.
Accord Morrisey I , 239 W. Va. at 641, 804 S.E.2d at 891.
See, e.g. , Jewell v. Maynard , 181 W. Va. 571, 581, 383 S.E.2d 536, 546 (1989) (rejecting "proposition that requiring lawyers to accept appointments involuntarily, even for no pay at all, is an unconstitutional taking," but holding at Syllabus point 3 that "[i]t is an unconstitutional taking of property without just compensation to require a lawyer to devote more than ten percent of his or her normal work year involuntarily to court appointed cases").
2. Circuit court's ruling and the parties’ arguments related to the Takings Clause. The circuit court found that, because the Labor Unions have been designated as exclusive bargaining representatives, they have a mandatory obligation under the LMRA to represent all employees in their respective bargaining units, regardless of whether or not the employees have joined, or pay any form of dues to, the Labor Unions. The circuit court observed that there are various expenses borne by labor organizations in relation to their collective bargaining activities. Such expenses include, for example, the costs of negotiating and administering contracts, maintaining office space, and paying staff. The circuit court reasoned that, because of the mandatory duty imposed by federal law upon exclusive bargaining representatives such as the Labor Unions to represent all members of a bargaining unit, West Virginia law preventing the Labor Unions from collecting compelled dues from the nonmember beneficiaries of their collective bargaining efforts to compensate them for the cost of those efforts amounts to an unconstitutional taking by the State of West Virginia.
The State argues that the Act does not take or infringe upon any cognizable property interest; thus, the circuit court erred in finding that the Act violates West Virginia's Takings Clause. Because the Act operates prospectively only and has no effect on existing contracts, the State believes the Labor Unions are actually attempting to claim the taking of a unilateral expectation of future dues, which is not a cognizable property interest that is protected by the Takings Clause. In addition, the State points out that the obligation to represent all members of a bargaining unit derives from federal law; therefore, any taking is imposed by federal law and not the Act. Finally, the State observes that labor organizations make a voluntary choice to become an exclusive representative, it is not forced on them, and the choice is accompanied by valuable benefits that effectively compensate them for their obligation to represent everyone in the collective bargaining unit. In other words, labor organizations are not compelled to provide collective bargaining services to nonmembers; rather, it is their choice, and they receive compensation for that choice.
The Labor Unions reiterate that it costs money to negotiate and administer labor contracts, and labor organizations bear other necessary expenses to operate. According to the Labor Unions, the funds used to pay for these various expenses come, almost entirely, from the dues collected. They complain that prohibiting them from collecting appropriate fees from nonmembers takes money from the union and essentially gives it to those nonmembers in violation of article III, section 9 of the West Virginia Constitution. In response to the State's argument that labor organizations are compensated for becoming exclusive representatives by virtue of the benefits they receive from that designation, the Labor Unions contend that any benefits they receive are not reducible to a calculable amount, and are offset by the constraints and duties imposed upon them by the LMRA.
3. Analysis. It is important to understand at the outset that the Act's application is prospective only. It has no effect on any existing contracts that allow for compelled dues. In Morrisey I , we recognized that " ‘[a] "property" interest protected by due process must derive from private contract or state law, and must be more than [a] unilateral expectation ....’ " 239 W. Va. at 641, 804 S.E.2d at 891 (quoting Syl. pt. 3, in part, Orteza v. Monongalia Cty. Gen. Hosp. , 173 W. Va. 461, 318 S.E.2d 40 (1984) ). As we explained in Morrisey I :
These due process guides are instructive in the context of the alleged taking of a property interest. In the absence of a collective bargaining agreement, unions have only a "unilateral expectation" of receiving fees from nonunion employees. Prior to the passage of Senate Bill 1 [the Act] unions could only speculate whether they would be able to negotiate new agreements with employers that would require the collection of fees from nonunion employees. The formation of a collective bargaining agreement with a fee-collection provision was contingent upon the consent of a third party: the employer. Hence, in the absence of an actual collective bargaining agreement, the unions have only a unilateral expectation that they will receive fees from nonunion employees. Senate Bill 1 [the Act] does not affect existing contracts; it affects only future agreements that unions and employers have not yet negotiated or accepted. The unions therefore have no protected property right that the Legislature has taken through the adoption of Senate Bill 1 [the Act].
239 W. Va. at 641-42, 804 S.E.2d at 891-92.
See also Int'l Ass'n of Machinists Dist. 10 & Its Local Lodge 1061 v. State , 378 Wis.2d 243, 903 N.W.2d 141, 149 (Wis. Ct. App. 2017) (finding no taking, in part, because Wisconsin's right-to-work law, Act 1, "does not appropriate, transfer, or encumber money contained in the Unions’ treasuries" (quotations and citation omitted)).
In addition, we find, as have other courts addressing a takings argument arising from a right-to-work law, that the Act itself simply does not effect a taking because the Act does not impose a duty upon labor organizations to provide services to noncontributing employees. Instead, the obligation of an exclusive representative labor organization to provide representation to all members of the collective bargaining unit derives from federal law. For example, when the United States Court of Appeals for the Seventh Circuit addressed this issue, it found that
See 29 U.S.C. § 159(a) (empowering an exclusive bargaining representative to bargain with the employer on behalf of all employees in a bargaining unit and imposing a corresponding duty to provide representation to all of the bargaining unit's employees). We acknowledge that the West Virginia Code also contains a provision that requires an exclusive representative to collectively bargain on behalf of all employees in a unit with respect to certain aspects of their employment. See W. Va. Code § 21-1A-5 (LexisNexis 2019) ("Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment or other conditions of employment."). However, this provision merely incorporates federal requirements in an area that has been preempted by federal law; therefore, this state statute does not change the fact that the fair representation obligation is imposed by federal law. See Richardson v. United Steelworkers of Am. , 864 F.2d 1162, 1166-67 (5th Cir. 1989) (observing that the "federal duty of fair representation [has] preempted state substantive law" (citing Vaca v. Sipes , 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967) )); E.E.O.C. v. Int'l Bhd. of Elec. Workers Local Union 998 , 343 F. Supp. 2d 655, 659 (N.D. Ohio 2004) ("The duty of fair representation encompasses an area of labor law which has been occupied so fully by Congress that it forecloses state regulation. Maynard v. Revere Copper Prods., Inc. , 773 F.2d 733, 735 (6th Cir. 1985).").
[t]he Union's alleged deprivation is the product of federal law and the Indiana statute operating in tandem. Because it is federal law that provides a duty of fair representation, Indiana's right-to-work statute does not "take" property from the Union—it merely precludes the Union from collecting fees designed to cover the costs of performing the duty. Even supposing the Union could justify its suit by invoking something like the tort doctrine of "concurrent actual causes," the dissent has not explained why the proper remedy would be to strike down Indiana's right-to-work statute rather than striking down or modifying the federal law imposing on all unions the duty of fair representation, in right-to-work states and non-right-to-work states alike.
Sweeney , 767 F.3d at 666.
See also Int'l Union of Operating Eng'rs Local 370 v. Wasden , 217 F. Supp. 3d 1209, 1223 (D. Idaho 2016) (rejecting taking argument based on Sweeney analysis finding the "alleged deprivation is the product of federal law, which requires the duty of fair representation. 29 U.S.C. § 159(a) [,]" and further commenting that "the proper target for Local 370's challenge is the NLRA, which authorizes both the Union's exclusive representation and its concomitant duty of fair representation"); Zoeller v. Sweeney , 19 N.E.3d 749, 752 (Ind. 2014) (commenting that "[o]n the face of the Indiana Right to Work Law, there is no state demand for services; the law merely prohibits employers from requiring union membership or the payment of monies as a condition of employment," and concluding, "[b]ecause it is federal law that provides a duty of fair representation, Indiana's right-to-work statute does not ‘take’ property from the Union." (quotations and citation omitted)); Int'l Ass'n of Machinists Dist. 10 & Its Local Lodge 1061 , 903 N.W.2d at 149 (concluding that Wisconsin's right-to-work law, Act 1, "does not require labor organizations to provide services to anyone. Act 1 merely prohibits employers from requiring union membership or the payment of fees as a condition of employment").
An additional ground for rejecting the argument that right-to-work laws such as the Act unconstitutionally take property from labor organizations is the fact that labor organizations actually do receive compensation for their duty to represent all employees in a bargaining unit. This reasoning has persuaded numerous courts, including the United States Supreme Court. The Supreme Court, in Janus , rejected the argument that the risk of members of the bargaining unit receiving the benefit of a union's collective bargaining efforts without contributing to the cost thereof provides justification for allowing such compelled dues. The Janus Court reasoned that labor organizations that have been designated as an exclusive representative receive compensation for their representation of nonmembers in the form of the significant benefits they obtain by virtue of that designation, and recognized that the corresponding burden imposed on them by the obligation of fair representation is not heavy:
The Janus Court observed the perspective of a bargaining unit member who does not wish to join a labor organization when it noted that the employee argued that "he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage." Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31 , ––– U.S. ––––, 138 S. Ct. 2448, 2466, 201 L. Ed. 2d 924 (2018).
Even without [compelled dues], designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions.... Not only is the union given the exclusive right to speak for all the employees
in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union....[ ] Designation as exclusive representative thus "results in a tremendous increase in the power" of the union. American Communications Assn. v. Douds , 339 U.S. 382, 401, 70 S. Ct. 674, 94 L. Ed. 925 (1950).
....
These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers. What this duty entails, in simple terms, is an obligation not to act solely in the interests of [the union's] own members....
See W. Va. Code § 21-1A-4(a)(5) (LexisNexis 2019) (declaring it an unfair labor practice for an employer to "refuse to bargain collectively with the representatives of his or her employees, subject to the provisions of subsection (a), section five [§ 21-1A-5(a) ] of this article"). Indeed, the Labor Unions, in arguing in their appellate brief that they have no real choice but to seek designation as exclusive representatives, acknowledge the value of being certified as an exclusive representative: "If the union does not seek [National Labor Relations] Board certification [as an exclusive representative], but instead seeks to bargain collectively on behalf of only union members, then there is no duty on the employer to bargain with the union."
Janus , ––– U.S. ––––, 138 S. Ct. at 2467, 201 L. Ed. 2d 924 (quotations and citations omitted).
The Janus Court explained that arguments directed at the burden on labor unions that cannot collect compelled dues " ‘are generally insufficient to overcome First Amendment objections.’ Knox [ v. Serv. Emps. Int'l Union, Local 1000 , 567 U.S. 298, 311, 132 S. Ct. 2277, 2289, 183 L. Ed. 2d 281 (2012) ]. To hold otherwise across the board would have startling consequences." Janus , ––– U.S. ––––, 138 S. Ct. at 2466, 201 L. Ed. 2d 924.
Directly addressing a takings challenge, the Seventh Circuit in Sweeney similarly concluded that "the union is justly compensated by federal law's grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table." Sweeney , 767 F.3d at 666. The Sweeney Court explained its rationale by stating that
[t]he duty of fair representation is ... a "corresponding duty" imposed in exchange for the powers granted to the Union as an exclusive representative.... It seems disingenuous not to recognize that the Union's position as a sole representative comes with a set of powers and benefits as well as responsibilities and duties.
Id. Likewise, the Wisconsin Court of Appeals has reasoned that
The Sweeney court cited Steele v. Louisville & Nashville Railroad Co. , 323 U.S. 192, 202, 65 S. Ct. 226, 232, 89 L. Ed. 173 (1944), for the proposition that "[t]he powers of the bargaining representative are ‘comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents.’ " Sweeney , 767 F.3d at 666.
the duty of fair representation is optional, carrying with it attendant benefits and costs.... The benefits received by the exclusive representative include being the sole seat at the bargaining table with the employer, as well as the power to negotiate collective bargaining agreements on behalf of all employees in the bargaining unit. See Sweeney , 767 F.3d at 666. These benefits correspond, however, to the duty to fairly represent all employees in the bargaining unit. See Vaca , 386 U.S. at 177, 87 S. Ct. 903 ; Clark [v. Hein-Werner Corp.] , 8 Wis.2d [264,] at 272, 99 N.W.2d 132 [ (1959) ]. Unions must now consider the foregoing costs and benefits in light of the additional requirements imposed by Act 1 [Wisconsin's right-to-work law], and then determine how best to lawfully acquire the funds they believe they need to perform their duties as an exclusive bargaining representative. Such a context in no manner accomplishes an unconstitutional taking of private property, including either the Unions’ money or its services.
Int'l Ass'n of Machinists Dist. 10 & Its Local Lodge 1061 , 903 N.W.2d at 150.
For the same reasons, the Supreme Court of Kentucky recently rejected the argument that the Kentucky right-to-work act effected a taking of labor organization property. Relying heavily on Janus , the Kentucky high court observed that the designation of exclusive representative
provides a union with a privileged place over wages, benefits, and working conditions. In the collective bargaining process, the union has the exclusive right to speak for all employees and an employer is required to listen to the union and negotiate in good faith. The designation results in a tremendous increase in power of the union. [ Janus , ––– U.S. ––––, 138 S. Ct. at 2467, 201 L. Ed. 2d 924 (citing Am. Commc'n Ass'n v. Douds , 339 U.S. 382, 401, 70 S. Ct. 674, 686, 94 L. Ed. 925 (1950) ) ]. Second, the union is granted special privileges in obtaining information about employees and having fees and dues deducted directly from wages. Id. As noted by the Court, these benefits greatly outweigh any extra burden imposed by the duty of fair representation for nonmembers, and the duty of fair representation does not significantly increase expenses that the unions would otherwise bear in negotiating collective bargaining agreements. Id. at 2467-68. Pertinently, and as to representation of nonmembers in grievance proceedings, the Court stated "[u]nions do not undertake this activity solely for the benefit of nonmembers[.]" Id. at 2468.
Zuckerman v. Bevin , 565 S.W.3d 580, 602 (Ky. 2018).
See also Int'l Union of Operating Eng'rs Local 139 v. Schimel , 863 F.3d 674 (7th Cir. 2017) (affirming district court's grant of motion for judgment on the pleadings that found, based upon Sweeney decision, that Wisconsin's right-to-work law, which prohibited payments to labor organization as condition of employment, did not constitute a taking); Wasden , 217 F. Supp. 3d at 1223 (finding that "even if Idaho's right-to-work law could be said to ‘take’ Local 370's ‘property,’ the union is justly compensated by federal law's grant to the Union the right to bargain exclusively with the employer. The reason the Union must represent all employees is that the Union alone gets a seat at the negotiation table." (internal quotations and citation omitted)).
The fact that the duty of fair representation also includes an obligation to represent nonmembers in grievance proceedings also does not give rise to a taking. As the Court in Janus observed,
[u]nions do not undertake this activity solely for the benefit of nonmembers.... Representation of nonmembers furthers the union's interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee's grievance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate "the interests of [an] individual employee ... to the collective interests of all employees in the bargaining unit." Alexander v. Gardner-Denver Co. , 415 U.S. 36, 58, n.19, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974) ....
Janus , ––– U.S. ––––, 138 S. Ct. at 2468, 201 L. Ed. 2d 924. In summary, the Janus Court concluded that compelled dues cannot
be justified on the ground that it would otherwise be unfair to require a union to bear the duty of fair representation. That duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. As explained, designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights. Supra , at [––––, 138 S. Ct. at] 2460-2461, [201 L. Ed. 2d 924 ]. Protection of their interests is placed in the hands of the union, and if the union were free to disregard or even work against those interests, these employees would be wholly unprotected. That is why we said many years ago that serious "constitutional questions [would] arise" if the union were not subject to the duty to represent all employees fairly. [ Steele v. Louisville & Nashville R. Co. , 323 U.S. 192, 198, 65 S. Ct. 226, 230, 89 L. Ed. 173 (1944) ].... We therefore hold that [compelled dues] cannot be upheld[.]
Janus at ––––, 138 S. Ct. at 2469, 201 L. Ed. 2d 924.
Finally, in response to the State's argument that labor organizations have a choice not to become an exclusive representative and thus avoid the duty of fair representation, the Labor Unions contend that such a choice is merely illusory because employers have no duty to bargain with a members-only labor organization and would invariably refuse to do so. Furthermore, the Labor Unions reason, if an employer did agree to negotiate with a members-only labor organization, the organization would have little to no leverage because the employer could walk away from the bargaining table at any point. We believe this argument merely serves to highlight the valuable benefits obtained by labor organizations who choose to seek the designation of exclusive representative. The fact that labor organizations do not like the choice presented to them under the law does not mean they are without a choice. The Supreme Court of Indiana was presented with a similar argument and also rejected it:
The State further argues that, in any event, there is no demand for [fair representation] services at all because the Union can choose not to be an exclusive-agency union and become a members only union. The Union responds that "[c]hoosing to represent members-only bargaining units is not an option under the [National Labor Relations Act]" because the "[National Labor Relations Board] will not process a representation petition by a union seeking a members-only bargain unit" and "a union that proposes to represent a minority of the bargaining unit has no remedy if the employer refuses to bargain with it." ... We disagree. The Union's federal obligation to represent all employees in a bargaining unit is optional; it occurs only when the union elects to be the exclusive bargaining agent, for which it is justly compensated by the right to bargain exclusively with the employer. See 29 U.S.C. § 158(a) ("It shall be an unfair labor practice for an employer ... (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title."); Sweeney , 767 F.3d at 666 ("The duty of fair representation is therefore a ‘corresponding duty’ imposed in exchange for the powers granted to the Union as to an exclusive representative.").
Zoeller , 19 N.E.3d at 753.
See also Zuckerman , 565 S.W.3d at 602 (observing that "[n]o union is compelled to seek designation as exclusive representative, but such designation is avidly sought").
Based upon the preceding discussion, we now hold that the provisions of West Virginia Code sections 21-1A-3 (2019) and 21-5G-2 (2019) that prohibit requiring a person, as a condition of employment or as a condition for the continuation of employment, to pay any dues, fees, assessments, or other similar charges to a labor organization do not result in an unconstitutional taking and do not violate article III, section 9 of the West Virginia Constitution.
C. Liberty Interests
As with the previous issues we have addressed, we divide our discussion of whether the Act infringes on the liberty interests of labor organizations into three sections. We first review the constitutional provision at issue, then summarize the challenged circuit court ruling and the arguments presented. Finally, we analyze the issue presented and provide our conclusion.
1. Liberty interest governed by article III, sections 3 and 10 of the West Virginia Constitution. Pursuant to article III, section 3 of our Constitution:
Government is instituted for the common benefit, protection and security of the people, nation or community. Of all its various forms that is the best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter or abolish it in such manner as shall be judged most conducive to the public weal.
Under article III, section 10 of our state constitution, "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." We have said that "[t]he Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against state action which affects a liberty or property interest." Syl. pt. 3, W. Va. Dep't of Educ. v. McGraw , 239 W. Va. 192, 800 S.E.2d 230 (2017) (citation omitted). With respect to the constitutionally protected liberty interest, this Court has explained that
[t]he "liberty interest" includes an individual's right to freely move about, live and work at his chosen vocation, without the burden of an unjustified label of infamy. A liberty interest is implicated when the State makes a charge against an individual that might seriously damage his standing and associations in his community or places a stigma or other disability on him that forecloses future employment opportunities.
Syl. pt. 4, id. (citation omitted). However, the Court has clarified that
liberty as used in the Constitution is not dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of a man to be free in the employment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. It includes the right to be free to use his faculties in all lawful ways; to live and work where he will.
Ex parte Hudgins , 86 W. Va. 526, 532, 103 S.E. 327, 330 (1920) (emphasis added).
These authorities refer to the liberty interest of an individual. The parties to this appeal have not provided any support for the proposition that a labor organization has a protected liberty interest under the West Virginia Constitution. Nevertheless, for the purposes of our discussion of this case, we will assume, without deciding, the existence of such a right.
2. Summary of the circuit court's ruling and the parties’ arguments. The circuit court found that the Act infringes upon the liberty interests of labor organizations guaranteed by article III, sections 3 and 10 of the West Virginia Constitution. The circuit court reasoned that, "[i]n order for a statute to withstand constitutional scrutiny under the substantive due process standard, it must appear that the means chosen by the Legislature to achieve a proper legislative purpose bear a rational relationship to that purpose and are not arbitrary or discriminatory." Thorne v. Roush , 164 W. Va. 165, 168, 261 S.E.2d 72, 74 (1979). The circuit court then found that the Act is arbitrary insofar as it will require labor organizations and their officials "to work, to supply their valuable expertise, and to provide expensive services for nothing. " In reaching this conclusion, the circuit court identified two cases where this Court has invalidated laws that placed arbitrary conditions upon certain employment.
See Thorne , 164 W. Va. 165, 261 S.E.2d 72 (striking a mandatory apprenticeship for barbers imposed by West Virginia Code section 30-27-3 as violating liberty interests); Ex parte Hudgins , 86 W. Va. 526, 103 S.E. 327 (invalidating a statute that made it a crime for " ‘any able bodied male resident of this state between the ages of sixteen and sixty, except bona fide students during school term,’ " to " ‘fail or refuse to regularly and steadily engage for at least thirty-six hours per week in some lawful and recognized business, profession, occupation or employment’ " (quoting section 2 of chapter 12 of the Acts 1917, Second Extraordinary Session)).
The State argues that the circuit court erred in finding an infringement of constitutionally protected liberty interests. The State also contends that there simply is no infringement insofar as the duty of fair representation arises under federal law, and even then only if a union makes a voluntary choice to organize as an exclusive agent as opposed to a members-only union.
The Labor Unions’ brief does not provide a full response to this issue, but comments in a footnote by referring to its argument that any choice between organizing as an exclusive representative or member's-only union is illusory.
3. Analysis. We agree with the State's position. Unlike the Thorne and Hudgins cases relied upon by the circuit court, the Act itself does not impose any duty upon labor organizations to provide services to noncontributing employees. Instead, that obligation arises under federal law. Because the Act imposes no requirement that labor organizations provide collective bargaining related services to nonmembers, it does not infringe upon any liberty interest they may be guaranteed. Accordingly, we expressly hold that the provisions of West Virginia Code sections 21-1A-3 (2019) and 21-5G-2 (2019) that prohibit requiring a person, as a condition of employment or as a condition for the continuation of employment, to pay any dues, fees, assessments, or other similar charges to a labor organization do not infringe upon any liberty interest under article III, sections 3 and 10 of the West Virginia Constitution.
See 29 U.S.C. § 159(a) (empowering an exclusive bargaining representative to bargain with the employer on behalf of all employees in a bargaining unit and imposing a corresponding duty to provide representation to all of the bargaining unit's employees). See, e.g. , Wasden , 217 F. Supp. 3d at 1223 (acknowledging that federal law ... requires the duty of fair representation. 29 U.S.C. § 159(a)"); Sweeney , 767 F.3d at 666 (noting that "federal law ... provides a duty of fair representation"); Zoeller , 19 N.E.3d at 752 (commenting that "[o]n the face of the Indiana Right to Work Law, there is no state demand for services; the law merely prohibits employers from requiring union membership or the payment of monies as a condition of employment"); Int'l Ass'n of Machinists Dist. 10 & Its Local Lodge 1061 , 903 N.W.2d at 149 (concluding that Wisconsin's right-to-work law, Act 1, "does not require labor organizations to provide services to anyone. Act 1 merely prohibits employers from requiring union membership or the payment of fees as a condition of employment.").
IV.
CONCLUSION
To summarize our analysis above, states are expressly authorized under federal law, the LMRA, to prohibit labor organizations from collecting compelled dues from workers as a condition of employment or as a condition for the continuation of employment. The West Virginia Legislature has exercised this authority by enactment of the Workplace Freedom Act with the clear legislative intent to protect the rights of West Virginia workers to choose for themselves whether to associate. From this basis, we have examined whether the Act violates the West Virginia Constitution's protections of association, property, and liberty rights, and have found no violations. The Act does not violate association rights. There simply is nothing in the Act that prevents workers from voluntarily associating with labor unions; instead, the Act operates to protect workers from being forced to associate with labor organizations they do not wish to join or fund. The Act also does not take property. The obligation on certain labor organizations to provide collective bargaining and grievance services to non-member workers is imposed by federal law, not the Act. Furthermore, as we have explained above, labor unions that are obligated to provide this fair representation receive due compensation in the form of valuable benefits provided under federal law. These benefits include their designation as the exclusive bargaining unit and the bargaining power that accompanies that designation. For the same reason, the Act does not infringe on any liberty interest by prohibiting compelled dues. The obligation to provide services to nonmembers is imposed on labor organizations by federal law, not the Act, and they are compensated for those services. In this appeal, Labor Unions have failed to present any relevant federal or state authority wherein a labor organization's rights have been infringed by right-to-work legislation similar to that enacted by our state legislature. Moreover, the circuit court clearly erred in its application of this Court's holding in Morrisey I . Because we have found the Act does not infringe upon association, property, or liberty rights protected by the West Virginia Constitution, we reverse the February 27, 2019 order of the Circuit Court of Kanawha County insofar as it granted partial summary judgment in favor of the Labor Unions. As there remains no genuine issue of fact to be tried and the law has been clarified, we remand this matter for entry of summary judgment in favor of the State.
As we previously noted, in its order of February 27, 2019, the Circuit Court of Kanawha County also granted partial summary judgment in favor of the State, and the Labor Unions did not appeal that ruling. See supra note 38. Thus, as a result of our disposition of this appeal, summary judgment shall now be granted to the State with respect to this case in its entirety.
Reversed and remanded.
CHIEF JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case.
JUDGE GREGORY L. HOWARD, JR., sitting by temporary assignment.
JUSTICE WORKMAN concurs in part and dissents in part and reserves the right to file a separate opinion.
JUSTICE HUTCHISON concurs and reserves the right to file a concurring opinion.
Justice Workman, concurring and dissenting: I reluctantly concur in the judgment of the Court, as I believe that the result in this case is compelled by the recent decision of the United States Supreme Court in Janus v. American Federation of State, County, and Municipal Employees Council , ––– U.S. ––––, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018). Given my judicial colleagues’ refusal to give more than a cursory nod to our unbroken line of precedents permitting -- and sometimes requiring -- us to "interpret [the West Virginia] Constitution to require higher standards of protection than afforded by comparable federal constitutional standards," Pauley v. Kelly , 162 W. Va. 672, 679, 255 S.E.2d 859, 864 (1979) (internal citation omitted), it is inevitable that any decision striking down the agency fee ban contained in W. Va. Code § 21-1A-3 would last only as long as it took for the petitioners herein to file a petition for writ of certiorari.
The majority concludes that the petitioners have presented "no grounds for heightened protections," apparently finding all of petitioners’ arguments made both below and in this Court to be without constitutional substance. Additionally, the majority cavalierly discounts the application of Pauley and its progeny by emphasizing (both literally and figuratively) that provisions of our Constitution "may, in certain instances , require higher standards of protection than afforded by the Federal Constitution." Pauley , Syl. Pt. 2, in part. Presumably, a case involving the protection of West Virginia workers’ hard-won right to engage in collective bargaining presents no such "instance."
"[U]nions typically play a critical role in educating workers about on-the-job hazards; giving workers incentives to take greater care on the job; attracting more safety-conscious workers; inducing employers to abate known hazards; increasing regulatory scrutiny; and developing safety-related innovations." Alison D. Morantz, Coal Mine Safety: Do Unions Make a Difference? , 66 Indus. & Lab. Rel. Rev. 88-89 (2013).
Make no mistake about it: I believe that the carefully crafted decision of the circuit court was absolutely correct in its associational rights and takings analyses – absolutely correct at the time it was written, in a pre- Janus world. I believe that Janus was wrongly decided, and I join wholeheartedly in the legal analysis set forth in the dissenting opinion by Justice Kagan on behalf of herself and Justices Ginsburg, Breyer, and Sotomayor. However, I also believe that although Janus was a decision involving only public employees’ unions, you don't need a weatherman to know which way the wind blows; there is no principled basis on which to conclude that under the legal analysis upon which Janus is based, a prohibition on the collection of agency fees is constitutional for public employees’ unions but unconstitutional for private employees’ unions. See, e.g., Zuckerman v. Bevin , 565 S.W.3d 580, 602 (Ky. 2018) ("the Supreme Court's analysis of the ‘free rider problem’ in its recent decision in Janus ... conclusively refutes, for several reasons, the Unions’ claim that they will be compelled to provide services without compensation.").
I am less convinced by the court's very brief liberty interest analysis, perhaps because the jurisprudential concept of liberty interest has become a moving target in cases involving hot-button issues. At a time when naked partisan politics seem to be seeping – nay, gushing – into the fabric of the judiciary, one judge's "liberty interest" is another judge's "legalistic argle bargle." U. S. v. Windsor , 570 U.S. 744, 799, 133 S.Ct. 2675, 2709 (2013) (Scalia, J., dissenting). Additionally, my reading of the petitioners’ arguments is that their constitutional underpinning is more congruent with concepts of substantive due process than with the more elusive concepts of liberty interest, see State ex rel. Harris v. Calendine, 160 W. Va. 172, 179, 233 S.E.2d 318, 324 (1977) ("Inherent in the due process clause of the State Constitution are both the concept of substantive due process and the concept of equal protection of the laws. In order for the statutory scheme ... to withstand constitutional scrutiny under the substantive due process standard, it must appear that the means chosen by the Legislature to achieve a proper legislative purpose bear a rational relationship to that purpose and are not arbitrary or discriminatory.") (footnotes omitted). However, petitioners have not squarely addressed a substantive due process issue and " ‘[w]e have noted on many occasions that "casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal.’ State v. Lilly, 194 W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995)." State v. Lambert , 236 W. Va. 80, 89 n.12, 777 S.E.2d 649, 658 n.12 (2015).
See https://www.cdc.gov/niosh/mining/statistics/content/coaldisasters.html (last accessed April 5, 2020).
Bob Dylan, Subterranean Homesick Blues (1965).
Morantz, 66 Indus. & Lab. Rel. Rev. at 99. "[U]nionization predicts a 14 to 32% drop in traumatic injuries and a 29 to 83% drop in fatalities." Id. at 89-90. See also , Alison Morantz, Does Unionization Strengthen Regulatory Enforcement? An Empirical Study of the Mine Safety and Health Administration , 14 N.Y.U. J. Legis. & Pub. Pol'y 697, 702 (2011) ("[T]wo recent studies find that unionization predicts a robust, sizable decline in the frequency of serious mining accidents."); William M. Boal, The Effect of Unionism on Accidents in U.S. Coal Mining, 1897-1929 , 48 Indus. Rel. J. 97, 117 (2009) ("[U]nionism [between 1897 and 1929] lowered accident fatalities in coal mines by somewhere between 20 and 60 percent, even after controlling for state safety regulations, changes in employer liability, Workers’ Compensation, and allegedly dangerous mining techniques like machine mining or ‘shooting off the solid.’ The effect of unionism on fatalities was equivalent to about five state safety regulations.").
I join in Justice Hutchison's separate opinion, wherein he writes convincingly of the benefits of unionization in this state and this country. I am not as sanguine as he, however, that the role of the judiciary is so limited that it can be summed up in the artfully coined phrase, "what the Legislature gives, the Legislature can constitutionally take away." It cannot be gainsaid that on numerous occasions, the Legislature has been mindful of politics and careless of the Constitution in enacting certain laws; and on those occasions, this Court has not hesitated to fulfill its role in our tripartite system of government by invalidating such laws. The fact that I do not believe we can invalidate W. Va. Code § 21-1A-3, due to the constraints placed on us by the constitutional analysis contained in the Janus opinion, does not signal my willingness to have the judicial branch of government simply "knuckle down" to the legislative branch. Our review of legislative enactments is highly deferential, see, e.g. , Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965) ; however,
"In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt."
Morantz, 66 Indus. & Lab. Rel. Rev. at 101.
[t]he system of ‘checks and balances’ provided for in American state and federal constitutions and secured to each branch of government by ‘Separation of Powers’ clauses theoretically and practically compels courts, when called upon, to thwart any unlawful actions of one branch of government which impair the constitutional responsibilities and functions of a coequal branch.
Louk v. Cormier , 218 W. Va. 81, 88, 622 S.E.2d 788, 795 (2005) (internal citations omitted).
I choose to write separately from Justice Hutchison because I do not, and cannot, concur in much of the majority's reasoning, notwithstanding my acceptance of its judgment. As then-Justice Davis cogently wrote in her dissenting opinion in Morrisey v. West Virginia AFL-CIO [Morrisey I] , 239 W. Va. 633, 649 n.1, 804 S.E.2d 883, 899 n.1 (2017), the majority
In this regard, at the outset "[i]t should be clearly understood that in expressing my dissentient views, however, in this honest and sincere disagreement between my associates and me, my criticisms are directed, not to them, but to their direction." Lance v. Board of Educ. of Cnty. of Roane, 153 W.Va. 559, 574, 170 S.E.2d 783, 791 (1969) (Haymond, J., dissenting).
See Mark 3:25; Luke 11:17.
demonstrates an inordinate lack of comprehension of basic tenets of labor law: the election of an exclusive union representative is a matter of necessity, not of choice. But for the existence of an exclusive union representative to facilitate negotiations, there would be no collective bargaining agreement to reconcile and govern the often divergent and discordant interests of employers and employees in the first instance, and the entire statutory scheme at issue herein, which seeks to regulate such union activities, would be a mere nullity.
(Emphasis supplied.) I fear that this is the ultimate outcome of what seems to be a mad rush in state legislatures, including our own, to choke off the lifeblood of labor unions: the funds necessary for the union to bring the employer to the table, to bargain on behalf of employees, to administer any contract resulting from that bargaining, and to represent employees – members and non-members alike – in grievances and disciplinary matters.
It is telling that the majority begins its analysis by quoting extensively from remarks made more than seventy years ago by Robert A. Taft, a fierce opponent of the New Deal who decried what he saw as "the consistently pro-labor attitude of the Executive [and] pro-labor interpretations [of the courts]." To the extent that Senator Taft's observations were valid in the 1940's, which may be debated, the pendulum has now swung so far in the other direction that these comments seem a quaint throwback to another era. Anti-union sentiment in the executive, the judicial, and the legislative branches of government is now pervasive; as noted by the majority, with the passage in 2016 of the precursor to the current Workplace Freedom Act, W. Va. Code §§ 21-1A-1 – 8, West Virginia became the 26th jurisdiction to enact right-to-work laws, thus joining in the inexorable march of the states toward eradication of labor unions as a force in the American economy.
Robert A. Taft, Forward to Fred A. Hartley, Jr., Our New National Labor Policy, The Taft-Hartley Act and the Next Steps , at xii (1948), quoted in full in the majority's opinion at pp. 3-4.
Morrisey v. W.Va. AFL-CIO , 239 W. Va. 633, 640, 804 S.E.2d 883, 890 (2017) ("Morrisey I "). See generally , 29 U.S.C. § 164(b) (2012).
As one legal scholar has noted, the "problem" which was "solved," at least in part, by the Taft-Hartley Act, was "that both unionism (the situation in which a firm's employees are represented by a union for collective bargaining purposes), and certain specific events associated with unionism, reduce shareholder wealth (the value of shareholders’ claims to firm profits as measured by security returns." Steven E. Abraham, How the Taft-Hartley Act Hindered Unions , 12 Hofstra Labor and Employment Law Journal 1, 2 (1994).
Syllabus Point 2, Huffman v. Goals Coal Co. , 223 W. Va. 724, 679 S.E.2d 323 (2009).
And it is beyond the pale of reasoned disagreement that this is exactly what the West Virginia Legislature intended to do when it enacted a right-to-work law, and specifically when it enacted W. Va. Code § 21-1A-3, requiring unions to fulfill all of their existing duties to non-members – to represent their interests in contract negotiations, to represent their interests in all matters arising from administration of a collective bargaining agreement, and to represent them in grievance, disciplinary or termination appeals -- without compensation. Evidence adduced in the proceedings below demonstrated that union membership can be expected to decline significantly as workers realize they can enjoy all the benefits of union membership without paying for those benefits, what one jurist has called "a classic ‘free-rider’ problem." Sweeney v. Pence , 767 F.3d 654, 673 (2014) (Wood, J., dissenting). See generally Abraham, supra at 30-31:
"If there is no way to compel the nonmember employee to pay the actual cost of the service the union is obligated to provide for him, a classic ‘free-rider’ problem arises ... In our situation, the nonmember of the union will reap the benefits of being represented b the union during a grievance, for instance, but he will pay nothing for those benefits, which might include a lay representative, maybe even a lawyer, investigative services, and so on – all things that cost the union real dollars to provide. In short, he will take a ‘free ride’ on the dues that the union members make to the union."
Morrisey I , 239 W. Va. at 639, 804 S.E.2d at 889.
Section 14(b) has generated a great deal of empirical work by researchers who have attempted to determine the impact of [right to work] laws on various union outcomes. Many of these studies find that RTW laws have a negative effect on the level of unionization in the states possessing them; the studies also suggest that RTW laws negatively impact state wage levels. These studies generally conclude that the statistics cited demonstrate that RTW laws reduce unionization by increasing union organizing and maintenance costs given the existence of ‘free riders’ in the bargaining unit, and/or decrease the bargaining power of unions – bargaining power being theoretically linked both to unanimity of support by organized employees and to the percent organized.
Much of what the majority has to say in today's opinion exposes the political philosophy that informs it: clearly, three members of this Court believe that W. Va. Code § 21-1A-3 was enacted for a beneficial purpose, and posit that its enforcement will do no harm to the unions’ ability to represent the interests of union members and non-members alike. I cannot agree. First, the petitioners in this case put not one scintilla of evidence into the record on this or any other point; the entirety of the majority's recitation of the supposed "benefits" inuring to a union are lifted wholesale from other courts’ decisions in other cases. And some of the pronouncements in those decisions are, to put it mildly, overblown, i.e. , "[t]he powers of the bargaining representative are ‘comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents.’ " Sweeney , 767 F.3d at 666, citing Steele v. Louisville & N.R. Co. , 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). In extricating this snippet of language from its context, the Sweeney court engaged in some legal sleight-of-hand, since in Steele , the point the Court was making was that just as Congress is constrained by the fourteenth amendment from enacting racially discriminatory laws, so too are unions constrained from refusing to negotiate on behalf of African Americans in the workplace. This is a far cry from holding – or, indeed, even suggesting -- that unions have near-plenary powers equivalent to those of a state legislature.
For example, there is no evidence as to whether any or all of the respondent unions and/or their locals have successfully bargained to have fees and dues deducted directly from wages; nonetheless, the majority lists this as a "benefit" that can be counted as "compensation" for purpose of a takings analysis.
Second, my research has not disclosed one single case containing a persuasive argument that protecting the rights of free riders to enjoy the benefits of union representation – chief among them the ability to force the employer to the table for negotiation concerning pay, benefits, and conditions of employment – without paying for them, serves any purpose other than to effect a stranglehold on unions’ ability to provide those services. As Justice Hutchison notes in his concurring opinion, laws such as the one at issue here were enacted to discourage unionization and undermine existing unions, just as the Taft-Hartley Act was enacted in 1947 for the express purpose of undermining many of the rights created in 1935 in the National Labor Relations Act. In that regard, to contend that unions can continue to represent members and non-members alike without sufficient funds to do so is naïve at best and disingenuous at worst. As we noted in an analogous situation, construing the constitutionality of West Virginia's system for providing court-appointed counsel to represent indigent criminal defendants, "[i]nevitably, economic pressure must adversely affect the manner in which at least some cases are conducted." Jewell v. Maynard , 181 W. Va. 571, 579, 383 S.E.2d 536, 544 (1989). This point was succinctly made by Justice Kagan in her dissenting opinion in Janus , 138 S. Ct. at 2491,
"Free riders" is a term curiously absent from the majority opinion. See text infra.
Labor Management Relations Act, 1947, ch. 120, 61 Stat. 136 (1947).
National Labor Relations Act, 29 U.S.C. §§ 151 – 169 (1935).
the majority again fails to reckon with how economically rational actors behave – in public as well as private workplaces. Without a fair-share agreement, the class of union non-members spirals upward. Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers) – so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative – or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.
(Internal citation omitted.)
Further, the notion that the grant of exclusive bargaining authority to a union is "compensation" for its mandate to provide services to free riders, a notion first explicated at length by the majority in Sweeney , supra , in dicta, and then adopted wholesale by the majority in Janus , is legalistic argle-bargle at its highest and best. The union's exclusive authority to bargain collectively is not a benefit; it is "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment." National Labor Relations Act, 29 U.S.C. 158(d) (emphasis supplied). Simply put, the exclusive bargaining authority of a union is the sina qua non of its existence, since in the absence of such authority, nothing can force the employer to the bargaining table. Allowing the union to function as a union cannot fairly be deemed compensation for requiring it to do so for nothing.
After noting that "no argument based on the Takings Clause was advanced by the Union, and so any such argument was forfeited," the majority in Sweeney went on to discuss the issue at length, concluding that "we believe the union is justly compensated by federal law's grant to the Union the right to bargain exclusively with the employer." 767 F.3d at 666.
Third, the suggestion that the loss of agency fees will do no real harm to the respondent unions, or to the workers they represent, is, to put it kindly, far removed from reality. The work of the union costs money – money for office employees, union reps, lawyers, experts, office space, operating expenses, and a myriad of other expenses too numerous to mention – everything required to effectively negotiate contracts, administer them, and represent individuals in grievance and disciplinary matters. These are huge and important tasks. As the United States Supreme Court recognized in Abood v. Detroit Bd. of Ed. , 431 U.S. 209, 221–22, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), overruled on legal grounds by Janus ,
The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money. The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged ‘fairly and equitably to represent all employees ..., union and nonunion,’ within the relevant unit.
(Internal citations and footnote omitted.) These facts are no less true today than they were at the time Abood was decided; and they are no less true today than they were forty-one years after Abood , when the Janus court determined that the First Amendment rights of free riders "to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees," id. , trumps all else.
Under Janus , and under today's majority opinion, free riders are the proverbial tail wagging the dog – a situation perilous to the dog's health and, ultimately, its continued existence. Can it seriously be thought that a little "belt-tightening" will allow the unions to continue to competently perform the critical services described in Abood as more and more workers realize that they don't have to pay for any of these union-provided benefits -- they can get them for nothing? And can it seriously be contended that as more and more union members realize they're paying not only for the benefits the union extends to them but also for those same benefits extended to the free riders, they won't decide to become free riders themselves?
In my view, the legislation at issue was intended to sound the death knell for both public and private workers’ unions in West Virginia – nothing more and nothing less. It is one thing for a state to prohibit closed-shop, or "union security," agreements, by which workers are required to join a union as a condition of employment; the states’ authority to do so was decided decades ago and is beyond dispute. See, e.g., Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn , 375 U.S. 96, 102-03, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963) ("it is plain that Congress left the States free to legislate" in the field of union-security agreements ... [and thus] "even if [a] union-security arrangement clears all federal hurdles, the States by reason of § 14(b) have the final say and may outlaw it. ") (Emphasis added.) Indeed, the lengthy discussion of this non-issue in the majority opinion is something of a red herring, as the circuit court upheld those parts of the Workplace Freedom Act prohibiting closed-shop agreements and the petitioners have not cross-appealed from that ruling. West Virginia is officially a right to work state, and no one is arguing to the contrary. However, it is another thing entirely to require a union to represent the interests of all workers, including non-union workers, in all employment-related matters, while simultaneously denying them, under penalty of criminal prosecution, the right to collect fees from the non-union workers for that representation. Federal law imposes the duty on unions to represent the interests of non-union workers, and now state law has imposed the duty on them to do it without compensation. As Chief Judge Wood of the United States Court of Appeals for the Seventh Circuit noted in his dissenting opinion in Sweeney , 767 F.3d at 671, remarking on the proverbial "one-two punch" of federal law mandating the union to represent free riders while state law prohibits it from being compensated for such representation, "[t]oday's decision ... lays bare an unconstitutional confiscation perpetuated by our current system of labor law." See also Morrisey I , 239 W. Va. at 653, 804 S.E.2d at 903 (Davis, J., dissenting):
"[F]ederal law clearly and unequivocally authorizes a part of the enactment of S.B. 1, that is, the prohibition on requiring employees covered by a collective bargaining contract to be members of the labor union representing them. Indeed, the amendments to the 1971 laws as well as the new provisions of W. Va. Code § 21-5G-2(1) and § 21-5G-3, reflect a sweeping and dramatic change in the public policy of this State, which the West Virginia Legislature, in accordance with the above-cited federal law, has the absolute authority to adopt. Accordingly, this court does not grant any relief that would invalidate those legislative enactments."
That free-riding nonunion members are being excused from paying their fair share of the union's collective bargaining expenses that have inured to the free riders’ benefit is the problem – which the majority declines to acknowledge, much less redress ... [B]ecause exclusive representative unions have an obligation to represent all employees in a workplace fairly and without regard for their union membership or affiliation, and the majority has failed to understand that there exists a corollary right to expect nonunion member free riders to bear their proportionate share of the cost of the union's collective bargaining activities, the right to be free from the unfettered taking of one's property no longer is a right guaranteed by the laws of this State.
(Emphasis in original.)
A system wherein unions are required to provide valuable services for all members of the bargaining unit, but without compensation by the unit's free-riders, is not sustainable in the long run, as the Legislature surely knew and as the majority surely knows. Something's got to give, either the unions’ effectiveness or their very existence. In short, the statute serves no purpose other than to thrust a dagger into the heart of labor unions by presenting them with a false choice: represent the interests of non-union members in the bargaining unit without compensation, or don't represent the bargaining unit at all. In this regard, the majority states that "we see nothing in [the Act] that prevents a person from making a voluntary choice to associate with a union or to pay union dues ...," citing Morrisey I , 239 W. Va. at 640, 804 S.E.2d at 890, and "nothing ... to discourage or prevent labor organizations from soliciting workers to join their organization." This reasoning can fairly be termed fatuous; how many workers can be expected to voluntarily pay union dues while the free riders, see text infra , will enjoy all of the same benefits of union representation without paying a penny? Similarly, what point would there be for the union to become a members-only union, which has no power to force the employer to the bargaining table? A union without the right to collectively bargain is not very far removed from being a mere social club.
To say, as the majority does (parroting Janus ), that unions can avoid all these problems by entering into a "members-only" agreement with the employer, is, as the respondents say in their brief, pie-in-the-sky. If a union is not the exclusive agent for the bargaining unit, i.e., if it seeks to bargain only on behalf of its members, the employer has no duty whatsoever to come to the table. The petitioners conceded this point at oral argument, although they continued to insist – without evidence – that somehow, somewhere, members-only unions happily exist and employers willingly negotiate with individuals and small groups of employees on an ad hoc basis.
Although I strongly disagree with many of the pronouncements contained in the majority opinion, I will mention only a few of the most egregious, beginning with the cavalier statement that "we find no grounds to apply a more stringent level of protection [under the West Virginia Constitution] than that afforded under the United States Constitution." First, it must be emphasized that this crabbed view of the expanded protections which may be afforded under our state constitution should not be extrapolated beyond the specific facts of this case, or beyond the context of the specific issue presented here; for although this Court has found that "[t]he protections inherent and explicit in [ W. Va. Const., art. III § 16 ] parallel associational, assemblage, and petition protections found under the first amendment," Woodruff v. Board of Trustees of Cabell Huntington Hosp. , 173 W. Va. 604, 609, 319 S.E.2d 372, 378 (1984), we have never held that our constitution cannot be interpreted to provide those protections for West Virginia citizens above and beyond what is found under the federal constitution. Indeed, we have consistently held to the contrary in a variety of cases involving constitutional freedoms and rights.
[S]ection three of article III [of the West Virginia Constitution] provides that: ‘Government is instituted for the common benefit , protection and security of the people, nation or community.’ W. Va. Const. art. III, § 3 (emphasis supplied). The federal constitution is devoid of any language stating that the federal government is instituted for the ‘commonn benefit’ and ‘security’ of its citizens. Although our due process clause does not significantly differ in terms of its language from the Fifth and Fourteenth Amendments to the federal constitution, this Court has determined repeatedly that the West Virginia Constitution's due process clause is more protective of individual rights than its federal counterpart.
Women's Health Ctr. of W. Va., Inc. v. Panepinto , 191 W. Va. 436, 441-42, 446 S.E.2d 658, 663-64 (1993) (footnote and internal citation omitted). See also Adkins v. Leverette , 161 W. Va. 14, 19-20, 239 S.E.2d 496, 499 (1977) ("While it is true that a state may not interpret its constitutional guarantee [which is identical to a federal constitutional guarantee] below the federal level, nothing prevents a state court from equaling or exceeding the federal standard."); Syl. Pt. 2, Pauley v. Kelly , 162 W. Va. 672, 255 S.E.2d 859 (1979) ("The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.") (emphasis supplied); Hendershot v. Hendershot , 164 W. Va. 190, 263 S.E.2d 90 (1980) (declining to follow federal precedent and holding that article III, section 14 of state constitution requires a jury trial for any offense when the penalty involves a term of incarceration, however short); Wanstreet v. Bordenkircher , 166 W. Va. 523, 530-31, 276 S.E.2d 205, 210 (1981) ( article III, section 5 of state constitution supports a heightened concern for the proportionality of criminal sentences beyond that contained in the eighth amendment to the federal constitution); State ex rel. Harper v. Zegeer , 170 W. Va. 743, 296 S.E.2d 873 (1982) (under West Virginia Constitution, which provides protections beyond those contained in the eighth amendment to the United States Constitution, criminal punishment of chronic alcoholics for public intoxication held unconstitutional); Syl. Pt. 1, State v. Bonham , 173 W. Va. 416, 317 S.E.2d 501 (1984) ; Queen v. W. Virginia Univ. Hosps., Inc., 179 W. Va. 95, 106, 365 S.E.2d 375, 386 (1987) ("It is not yet clear just what the federal courts will determine to be adequate notice and a meaningful opportunity to respond, and we, of course, reserve our option to extend broader protections to workers than the federal courts may require."); Syl. Pt. 3, State v. Neuman , 179 W. Va. 580, 581, 371 S.E.2d 77, 78 (1988) ("The West Virginia Constitution, art. III, § 10, provides a criminal defendant a level of due process protection at least equal to that provided through the fifth and fourteenth amendments to the United States Constitution, and may, in certain circumstances, require higher standards of protection."); Syl. Pt. 1, State v. Osakalumi , 194 W Va. 758, 461 S.E.2d 504 (1995) ; State ex rel. Carper v. W. Va. Parole Board , 203 W. Va. 583, 590 & n.6, 509 S.E.2d 864, 871 & n.6 (1998) ("This Court has determined repeatedly that the West Virginia Constitution may be more protective of individual rights than its federal counterpart."); State v. Mullens , 221 W. Va. 70, 89, 650 S.E.2d 169, 188 (2007) ("we may interpret state constitutional guarantees in a manner different than the United States Supreme Court has interpreted comparable federal constitutional guarantees") (internal citation omitted). In a scholarly article in the West Virginia Law Review, the late Justice Thomas B. Miller reviewed this Court's precedents and found two common analytical strands in the relevant cases. "First, the court has shown an awareness of areas of traditional state concern and has been willing to extend broader protection." In this regard, Justice Miller cites education and educational funding as an area of traditional state concern; hence this Court's decision in Pauley , supra , and its progeny. "Second, where the state constitution uses wording which provides protections over and above federal guarantees, the court has shown a willingness to implement it by developing its own state-law jurisprudence." Here, Justice Miller cites our proportionality cases, Wanstreet , supra , and its progeny, noting the express proportionality principle contained in W. Va. Const., art. III, § 5, which differs from the language contained in its federal counterpart, the eighth amendment. Even in those cases where we declined to interpret provisions of our constitution as affording greater protection than their counterparts in the federal constitution, we acknowledged our authority to do so in a proper case, and undertook the required analysis. Here, the majority has elected to forego any real analysis of the issue, citing the lack of any specific constitutional provision or case "under which the protection of association rights claimed by a labor organization may be entitled to more stringent treatment than that provided by the United States Constitution." This overlooks the fact that virtually every legal principle has its genesis in a case of first impression – which, admittedly, this case would be. But then, for four decades prior to Janus it would not have been necessary to even consider such an issue, since it was settled law under Abood that non-union employees in a unionized workplace could be required "to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union's political or ideological activities." Janus , 138 S. Ct. at 2487 (Kagan, Justice, dissenting).
Thomas B. Miller, The New Federalism in West Virginia , 90 W. Va. L. R. 51 (1987).
Id. at 64.
Id.
Although the Jewell case strongly supports a finding that W. Va. Code § 21-1A-3 is confiscatory, and thus unconstitutional, it is not squarely on point as its holding was tied inextricably to its specific facts: "where the caseload attributable to court appointments is so large as to occupy a substantial amount of an attorney's time and thus substantially impairs his ability to engage in the remunerative practice of law, or where the attorney's costs and out-of-pocket expenses attributable to representing indigent persons charged with crime reduce the attorney's net income from private practice to a substantial and deleterious degree, the requirement of court appointed service will be considered confiscatory and unconstitutional." Jewel , Syl. Pt. 1, in part.
I admit that there is no clear or simple answer to the question of whether the West Virginia Constitution provides a more stringent level of protection for West Virginia's unionized workers than is afforded under federal law, as set forth in Janus . With reference to the analytical threads noted supra , there can be little doubt that issues involving unions, employers and workers fall within the rubric of "area[s] of traditional state concern"; the struggle of West Virginia workers to unionize, and the struggle of some employers to stop them, is the stuff of legend. On the other hand, however, there is no specific constitutional provision or language which, in Justice Miller's words, "provides protections over and above federal guarantees." Further, as pointed out in the majority opinion, every state court which has decided the issue of agency fees has agreed, in whole or in part, with the reasoning of Janus . Given these competing considerations, I cannot say with certainty that this Court should go out on a long, lonely limb and stake out an outlier position. However, I believe that our precedents require at the very least, that we carefully examine the issues presented in this case within the framework of the West Virginia Constitution – regardless of the ultimate decision. The respondents deserve no less.
Several other things in the majority opinion bear noting, as they demonstrate the majority's unwillingness to even discuss, let alone confront, whether the statute at issue is confiscatory under our Jewell decision. In a unionized workplace, a majority of the individuals in a collective bargaining unit have thrown their lot in with the union, believing that it will be to their benefit to have a representative that can force the employer to the table to negotiate terms and conditions of employment. Now those individuals are required by law to subsidize the minority – the free riders. It is telling that in its lengthy opinion, the majority mentions "free riders" only once – and that mention is buried deep in a footnote -- despite the fact that in virtually every other opinion ever written, from Abood through and including Janus and beyond – the problem of free riders is deemed to be at the heart of the constitutional challenges to bans on agency fees. Even the late Justice Antonin Scalia, a staunch conservative, acknowledged that "[w]hat is distinctive, however, about the ‘free riders’ who are nonunion members of the union's own bargaining unit is that in some respects they are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests." Lehnert v. Ferris Faculty Ass'n , 500 U.S. 507, 556, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991) (Scalia, J., concurring in part and dissenting in part) (emphasis in original). In this regard, it may be reasonably inferred that the majority had some difficulty explaining that what has historically been seen as the unfortunate byproduct of a statutory ban on agency fees – dues-paying union members are forced to subsidize free riders -- has somehow morphed into a constitutional "freedom" on the part of the free riders to avoid paying for services rendered on their behalf. Never, until today, has free riding been seen as a West Virginia value, let alone a value deserving of constitutional protection.
In footnote 74, the majority repeats the complaint made by some employee – presumably Mr. Janus -- that "he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage." Janus , 138 S. Ct. at 2466.
Also worthy of note is the majority's lengthy footnote 40, explaining why it has determined to come up with a brand new name for what every other court in America (including the United States Supreme Court) calls agency fees or fair-share fees: specifically, the amounts of money which, prior to today, non-members have been required to pay to unions for the union's services (bargaining, administration, and representation in grievance and disciplinary matters) that specifically benefit them. Now, says the majority, we're going to call these fees "compelled dues" because ... well, why? Because the word "compelled" implies coercion, a concept all West Virginians would abhor, and the word "dues" implies forced membership, despite universal agreement that no employee can be forced to be a member of a union as a condition of his or her employment. A nice piece of legerdemain, this relabeling, and one that is nakedly political.
Finally, I am compelled to note the sheer irony of the majority opinion, as I am hard-pressed to imagine a decision less "conservative" than this one is; it upholds, and indeed extols the virtues of, W. Va. Code § 21-1A-3, a statute which exemplifies Big Government at its most overbearing. The West Virginia Constitution does two things: it sets forth the rights of citizens, while restricting the power of government to interfere with those rights. See generally State ex rel. Cooper v. Tennant , 229 W. Va. 585, 730 S.E.2d 368 (2012). Here, in the absence of any evidence that West Virginia's employers and unionized employees are unable to fairly and reasonably negotiate and set the terms of their respective labor agreements, the powers-that-be in Charleston have stepped in and set the terms for them – with criminal penalties for non-compliance, no less. Any legislator who voted for passage of this statute should be booed off the stage the moment he or she professes to be in favor of limited government and individual rights.
In more than thirty years of service in the judicial branch of government, both as a Kanawha County Circuit Judge and then as a Justice of the Supreme Court of Appeals of West Virginia, I have tried to follow my judicial oath of office, which requires me to decide cases fairly and impartially, based on the facts and evidence presented and on the governing law, not based on my own personal, religious, and/or political beliefs. As a result, there have been many times I have voted to uphold a statute that I personally found to be ill-conceived, because our precedents demand it. Following this Court's longstanding policy of judicial restraint has been especially difficult in this case, as I strongly believe that W. Va. Code § 21-1A-3 will ultimately lead to the slow death of the unions which built this state. However, the wisdom of the statute is not the question before us; the question is whether the law is constitutional, not whether it is mean-spirited and intended to impair the rights of West Virginia workers by impairing the ability of unions to work on their behalf. In that regard, the legislators who enacted the Workplace Freedom Act were elected by the people and are answerable to them; "[t]he Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process." Cooper , 229 W. Va. at 615, 730 S.E.2d at 398, quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Thus, only time will determine whether West Virginia voters support the Legislature's gift to them of a "freedom" that will ultimately eviscerate their hard-won ability to improve their conditions of employment through vigorous collective bargaining.
In reality, the merits of this case were decided in Morrisey I , which I termed a "stunning failure to recognize our jurisdictional limits in explicitly resolving constitutional issues in the context of the review of a preliminary injunction," 239 W. Va. at 648, 804 S.E.2d at 898 (Workman, J., concurring in part and dissenting in part); and now, with the subsequent issuance of the Janus opinion, any argument in support of agency fees has become a jurisprudential dead letter. Accordingly, I reluctantly concur in the judgment of the Court.
Justice Hutchison, concurring:
The majority opinion presents an analysis of West Virginia's 2016 "right to work" laws that says those laws are constitutional. The law dictates that I must concur because the gist of the majority opinion is true: what the Legislature gives, the Legislature can constitutionally take away. No other court in America has found a right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different.
Before and after legislatures passed laws to encourage and protect unionization (or, more recently, to discourage unionization), unions fought hard to organize, and they worked diligently to bring collective bargaining to industrial worksites. Their efforts led to dramatic improvements in safety and productivity.1 Unions pushed employers to give us forty-hour weeks and weekends off, paid vacation and holidays, an eight-hour workday and overtime pay. These benefits paved the way for American workers to become some of the most productive in the world. Unions also fought for Social Security and pension benefits, workers’ compensation and unemployment insurance. They have pushed for the elimination of gender and racial discrimination. And unions are the reason employers provide health insurance. For over a century, American unions have worked to protect individuals and to ensure workers are not treated as consumable commodities.
To see the effectiveness of union involvement in the protection of workers, one only has look at the decreasing numbers of disasters and deaths in coal mines. The National Institute of Occupational Safety and Health ("NIOSH") compiled a list of coal mine disasters in West Virginia from January 1886 through April 5, 2010.2 NIOSH defines a "disaster" as an event (like a fire, explosion, roof fall, coal bump, etc.) in which five or more miners die. The last such disaster in West Virginia was at the Upper Big Branch Mine in Montcoal on April 5, 2010 (exactly ten years before my writing of this concurring opinion). Unions first received significant legal protection when the National Labor Relations Act was passed by Congress in 1935. With much encouragement from the United Mine Workers of America, Congress passed the Mine Safety and Health Act of 1969. West Virginia adopted state protections for unions and workers between 1965 and 1971. This legislation provided fertile ground for unions to flourish.
NIOSH statistics illustrate that as unionization grew in the mines, there was a "sizable and robust decline in both traumatic injuries and fatalities."3 The statistics show that in West Virginia, from 1886 until 2010, there were a total of 101 coal mining disasters claiming 2,617 lives. Viewed at a more granular level, the statistics show 94 disasters before 1971 – about 1.1 coal mining disasters per year; after 1971 (the year of the last West Virginia enactment) and through 2010, there were only seven coal mining disasters – about .18 per year, which works out to one disaster every five-and-a-half years. The numbers of deaths have also dropped. Between 1886 and 1971, 2,442 miners died in disasters at a rate of 28 per year; in the 39 years from 1971 to 2010, 175 died at a rate of 4.5 per year. Indeed, "unionization is associated with a significant decline in those mine accidents[.]"4
While it is a broad simplification to attribute the substantial decrease in loss of life and limb or in the occurrence of coal mining disasters to only union activity, union activity had a substantial impact. Moreover, unions had a substantial impact on correcting conditions of low wages, unsanitary conditions, child labor, nepotism, and a host of other negative workplace influences.
Unions rose and grew to combat the wrongs that employees faced in the workplace. Right-to-work laws serve to undermine unions, and no matter how optimistic I am, my years as a judge have taught me this: those wrongs will more likely than not rise again. Much like a democracy, only collective action by a majority of the people, working together, can combat wrongs. A house divided against itself will fall.5
As the majority opinion relates, Congress passed the National Labor Relations Act in 1935 to protect unions and encourage collective bargaining. In 1947, Congress passed the Taft-Hartley Act to whittle down the very same rights it created in 1935. The Taft-Hartley Act recognized that States could adopt laws to "prohibit employers and unions [from] negotiat[ing] agreements requiring compulsory union membership, or requiring nonunion employees to pay dues or fees to the union."6 Thus, Congress gave, and Congress took away.
In the same way, the West Virginia Legislature created protections for unions in 1965 and 1971 when it crafted a Labor-Management Relations Act. In 2016, the Legislature passed the right-to-work legislation at issue in this case. As the majority opinion notes, the 2016 right-to-work laws stripped away many union protections. What the Legislature gave, the Legislature had the power to later take away.
This Court has often said that questions of public policy are within the realm of the Legislature. The guiding rule for any Justice is this:
This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions. 7
Many people in the state of West Virginia might personally disagree with the Legislature's decision to enact a right to work law and question the propriety of the policy propounded by such legislation. However, I do not approach this question as a legislator or as a private citizen. I approach it as a Justice, and as a Justice, I must defer to the decision of legislators, acting together, whom the people elect every two to four years.
I have studied past challenges to right-to-work laws, and I have read countless United States Supreme Court cases and lower federal court cases and state court cases. With almost clarion unity, courts repeatedly hold that legislatures may give rights to unions and can just as quickly take those rights away with constitutional impunity. The Morrisey I Court acknowledged as much in 2017, saying that "[t]wenty-seven other states have adopted right to work laws similar to West Virginia's, and the unions have not shown a single one that has been struck down by an appellate court."8 The Morrisey I Court hinted that the unions’ lawyers needed to come up with better legal arguments. Having read the work of other courts, at this point I don't think there is a better argument. I now think the solution lies in the ballot box, not the courtroom.
Having taken a constitutional oath as a Justice, it is my sworn duty to uphold the law. I am, therefore, compelled by the law and my obligations as a Justice to respectfully concur with the majority opinion.