Morrisey v. Afl-Cio

Decision Date21 April 2020
Docket NumberNo. 19-0298,19-0298
Citation842 S.E.2d 455,243 W.Va. 86
Parties 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
CourtWest Virginia Supreme Court

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"),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 context of a preliminary injunction and remanded the case for a final hearing.

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


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 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[9 ] whereby an 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.

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 .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

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4 cases
  • James C. Justice v. Afl-Cio
    • United States
    • West Virginia Supreme Court
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    ...Id. (amending W. Va. Code § 8-5-12 (eff. June 17, 2021)).10 164 W. Va. 736, 266 S.E.2d 444 (1980).11 Morrisey v. W. Va. AFL-CIO, et al. , 243 W. Va. 86, 842 S.E.2d 455 (2020).12 Morrisey v. W. Va. AFL-CIO, et al. , 239 W. Va. 633, 804 S.E.2d 883 (2017).13 The court entered an Amended Order ......
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