Case Bulletin – Court of Appeals dissolves preliminary injunction halting implementation of West Virginia’s “Workplace Freedom Act.”
Morrisey v. W. Va. AFL-CIO, No. 17-0187, (W. Va., Sept. 15, 2017).
In 2016, the West Virginia Legislature enacted the Workplace Freedom Act, which amended labor-relations laws regarding union representation of employees. The Act restricted the ability of unions to compel employee membership and the payment of union dues from non-union members.
Several unions filed suit against the Attorney General to enjoin implementation of the Act, arguing that it was unconstitutional as (1) an impairment of union association rights; (2) a taking of union property without just compensation; and (3) a violation of union liberty interests. In early 2017, the circuit court awarded the unions a preliminary injunction, and halted implementation of the Act until the court could rule on the unions’ constitutional arguments.
On the Attorney General’s appeal, the Court of Appeals concluded that the circuit court had abused its discretion in awarding the injunction because the unions had not demonstrated that their constitutional challenges were likely to succeed. Justice Ketchum, writing for the majority, first observed the general presumption in favor the Act’s constitutionality, and the unions’ high burden to overcome that presumption—to show “beyond a reasonable doubt” that it was unconstitutional. Majority Opinion, slip op. at 5. He also acknowledged that twenty-seven other states had adopted similar laws, none of which had been successfully challenged on constitutional grounds. Id. at 6-7.
As to the unions’ first argument, Justice Ketchum cited Lincoln Fed. Labor Union No. 19129, A.F. of L. v. Northwestern Iron & Metal Co., 335 U.S. 525, 531 (1949), for the proposition that “the constitutional right to assemble and associate does not entitle a union to compel nonmembers to ‘participate in union assemblies’ as a condition of employment,” and does not entitle unions “‘to the fees of nonmember-employees.’” Id. at 12. He next concluded that the unions had only a “unilateral expectation that they will receive fees from nonunion employees,” and thus “no protected property right that the Legislature has taken[.]” Id. at 14. Finally, he rejected (as undeveloped) the unions’ “skeletal” argument that the Act violated their liberty interests in “earn[ing] [a] livelihood in any lawful calling, and  pursu[ing] any lawful trade or avocation.” Id. at 15. Justice Ketchum noted that the unions had “failed to show that any other appellate court in this country has adopted a similar argument to strike down a similar right to work law.” Id.
While Chief Justice Loughry agreed with Justice Ketchum’s somewhat terse constitutional analysis, he filed a concurring opinion to provide a more “comprehensive discussion of the underlying constitutional challenge,” and to highlight the improvidence of the circuit court’s granting the injunction in the first place. According to Chief Justice Loughry, the unions’ constitutional arguments not only lacked precedential support; they had been “effectively rebuffed” by Supreme Court precedent. Chief Justice Loughry thus believed that the unions had shown no likelihood of success, and noted the circuit court’s “monumental failure of legal reasoning[.]”
Justice Workman concurred in part and dissented in part; Justice Davis dissented. Both Justices reserved the right to file a separate opinion.