Morrisey v. West Virginia AFL-CIO, 042120 WVSC, 19-0298

Docket Nº:19-0298
Opinion Judge:JENKINS, JUSTICE
Party Name: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 O...
Attorney: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 Mark H. Dellinger Justin M. Harrison Danielle M...
Judge Panel: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, concurring and dissenting: Justice Hutchison, concurring:
Case Date:April 21, 2020
Court:Supreme Court of Appeals of West Virginia

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

Supreme Court of Appeals of West Virginia

April 21, 2020

Submitted: January 15, 2020

Appeal from the Circuit Court of Kanawha County The Honorable Jennifer F. Bailey, Judge Civil Action Nos. 16-C-959 and 16-C-969

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

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

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

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

CHIEF JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case.

JUDGE GREGORY L. HOWARD, JR., sitting by temporary assignment.

SYLLABUS BY THE COURT

1. 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.

2. 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.

3. 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.

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

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 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 agreement9 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, ...

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