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
No. 19-0298
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
April 21, 2020
January 2020 Term
Patrick Morrisey
Attorney General
Lindsay S. See
Solicitor General
Charleston, West Virginia
Attorneys for the Petitioners
Vincent Trivelli
The Law Office of Vincent Trivelli
Robert M. Bastress
Morgantown, West Virginia
Attorneys for the Respondents
Submitted: January 15, 2020
Filed: April 21, 2020
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
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
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
JUSTICE JENKINS delivered the Opinion of the Court.
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.
- The provisions of
West Virginia Code sections 21-1A-3 (2019) and21-5G-2 (2019) that prohibit requiring a person, as a conditionof 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 and16 of the West Virginia Constitution . - The provisions of
West Virginia Code sections 21-1A-3 (2019) and21-5G-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 violatearticle III, section 9 of the West Virginia Constitution . - The provisions of
West Virginia Code sections 21-1A-3 (2019) and21-5G-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 underarticle III, sections 3 and10 of the West Virginia Constitution .
Jenkins, Justice:
In 2016, the West Virginia Legislature enacted the Workplace Freedom Act (sometimes “the Act“),1 making West Virginia the nation‘s twenty-sixth right-to-work state.2 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),3 we rejected the arguments made here in the
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-CIO4 (“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.
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.5
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“).6 “[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.7
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“).8 A sponsor of the LMRA, has explained that,
[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 grantinjunctions 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 agreement9 wherebyan employer agrees to employ only union members.” Morrisey I.10 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.11
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.
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 subsequentenforcement of that agreement, including the administration of any grievance procedure the agreement may establish. Ibid.
Beck.12 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.13 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.14 A labor organization that has not achieved exclusive bargaining representation status does not receive these benefits or owe the corresponding obligations.
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.
B. Relevant West Virginia Labor Law
In 1965, the West Virginia Legislature enacted a two-section article addressing labor-management relations.17 The primary purpose of the article was the prevention or prompt resolution of labor disputes.18 In furtherance of this goal, the Commissioner of Labor was empowered to “investigate and mediate” certain 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.19 The 1971 Labor-Management Relations Act was “patterned after the provisions of the ‘National Labor Relations Act.‘”
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. . . .
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.
(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 . . . .
Then, in 2016, the Legislature exercised the authority expressly granted under the
Most notably, while the amended version of
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, 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.
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.
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.
From this point forward, when we refer to the Workplace Freedom Act or the Act, we include in that reference
C. Procedural History of Current Appeal
The Labor Unions,30 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 Constitution31 and thereby infringed upon their rights to associate, as well as their libertyand property rights.32 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“);33 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“).34
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, KenHall (“Mr. Hall“), who is the president of the Chauffeurs, Teamsters and Helpers Local No. 175 (“Teamsters Local No. 175“) and General
unit employees who were not paying dues to the union.36 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:
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.37 On February 27, 2017, the State filed its notice of appeal. Oral arguments were held and the case was submitted on September 5, 2017.
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
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 Defendants38 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 dues39 contained in West Virginia Code sections
II.
STANDARD OF REVIEW
This appeal from circuit court rulings that granted summary judgment is subject to de novo review.40 In conducting this plenary review, we are mindful that
[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).41 In other words,
“[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.42 We address each of these issues in turn.
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 Act43 and the West Virginia Labor Management Relations Act44 violated rights of association guaranteed to the Labor Unions under
[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.45
Similarly,
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
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).48 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.
The Pushinsky 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).49 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.
“The U.S. Supreme Court has recognized two types of constitutionally protected association under the First Amendment: intimate50 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
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,51 and the associated enforcement of that ban through criminal penalties and civil liabilities,52 infringe on the association rights of labor organizations and their members in violation of
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.”53 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.
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
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.55 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.56
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 statue, 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
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.60 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
[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.61
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).62
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 462.64 The Act simply does
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 462.65 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
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).66
It is also noteworthy that the Supreme Court has “never suggested that the
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]
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
For the foregoing reasons, we now hold that the provisions of
B. Property Rights
Our analysis of the circuit court‘s ruling on the Labor Unions’ property rights involves the Takings Clause of the
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).68 We also have clarified that services rendered are property capable of being taken by the State.69 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
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
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
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 891-92.70
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.71 For example, when the United
[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.
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.73 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:
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. . . .74 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. . . .
Janus, ___ U.S. at ___, 138 S. Ct. at 2467, 201 L. Ed. 2d 924 (quotations and citations omitted).75
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
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.”
comes with a set of powers and benefits as well as responsibilities and duties.
Id.76 Likewise, the Wisconsin Court of Appeals has reasoned that
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, 8 Wis. 2d at 272, 99 N.W.2d 132. 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
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).77
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. at ___, 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
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 an exclusive representative.“).
Based upon the preceding discussion, we now hold that the provisions of
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
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
[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).79
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
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.81
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)).
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
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
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.“).
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.82
Reversed and remanded.
Notes
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.[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.
NLRB 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,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) . . . .