West Virginia AFL-CIO officials, furious about a new law stopping unions from collecting mandatory fees, announced last week their plan to fight back with a lawsuit.
Earlier this year West Virginia became the 26th state to enact right-to-work, which permits West Virginians in unionized workplaces to opt out of union membership without being required to pay union “fair share” fees.
The West Virginia AFL-CIO intends to argue in court that ending fair share fees violates the state constitution by forcing unions to represent workers who do not pay — a situation resulting from union-negotiated contracts giving unions exclusive representation rights.
Unions have used the same argument against right-to-work laws in Indiana and Wisconsin. The Indiana Supreme Court overruled a lower court decision against right-to-work in 2014.
“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,” Indiana Supreme Court justices wrote in their decision.
A recent lower court victory for Wisconsin unions is expected to be overturned by the Wisconsin Supreme Court. Even if West Virginia’s unions win a ruling against right-to-work from a sympathetic judge, the same is likely to happen in West Virginia.
Beth Walker, who previously ran for the West Virginia Supreme Court as a Republican, defeated a union-backed opponent to win the state’s first nonpartisan Supreme Court race on Tuesday.
In addition to arguing that right-to-work violates unions’ rights under the West Virginia Constitution, the West Virginia AFL-CIO lawsuit to be filed next month will try to exempt private-sector workers from the law because of what the union coalition describes as a “drafting error.”
“The unions are trying to read something into the bill that simply isn’t there,” F. Vincent Vernuccio, director of labor policy at the free-market Mackinac Center for Public Policy, told Watchdog.org.
“The plain language of the definitions in the right-to-work act says that ‘an employer’ means any person employing at least one individual in the state or any agent of an employer employing at least one individual in the state,” he said.
Vernuccio said he expects the unions to argue that “the state” is a reference to the state government, but he thinks “the intent and the plain reading of the statute shows that the legislature fully intended and did bring right-to-work to private sector employees in West Virginia.”
To address union concerns about representing non-members, Mackinac published a report in 2015 detailing a Worker’s Choice policy that would free workers from unwanted union representation and free unions from the duty to represent non-members.
Under Worker’s Choice, workers opting out of union membership would not have to pay union fees and would be free to negotiate the terms of their own employment. Unions would only represent their members during contract negotiations or labor disputes.
Vernuccio sees Worker’s Choice as a complement to right-to-work that could solve the problem of what unions call “free riders” with state reforms for public-sector workers and a national reform to private-sector union law. Worker’s Choice is especially important given uncertainty at the U.S. Supreme Court, he told Watchdog.org.
“If Merrick Garland or a similar appointee gets to the U.S. Supreme Court, they may bend over backwards to overturn seven decades of precedent to buy the unions’ free rider argument,” Vernuccio said.
“Worker’s Choice is the answer to the main complaint and the main legal argument against right-to-work, and if there is an unfavorable Supreme Court it may be what saves right-to-work in the long run,” he added.
The West Virginia AFL-CIO did not respond to a request for comment about the coalition’s pending challenge to right-to-work.