CHARLESTON — Almost four years after West Virginia’s right-to-work law was passed out of the Legislature and subsequently challenged in court, attorneys for the state and the AFL-CIO labor union appeared before the state Supreme Court on Wednesday to present oral arguments.

The West Virginia Legislature passed Senate Bill 1, the “Workplace Freedom Act,” in early 2016. The state chapter of the AFL-CIO filed suit against the state just before the bill became law in July 2016.

Solicitor General Lindsay See, representing the state, argued Wednesday that in 27 states where right-to-work laws have been passed, not one state or federal appellate court has struck them down.

Bob Bastress, a WVU constitutional law professor representing the West Virginia AFL-CIO, argued right-to-work laws force unions to engage in collective bargaining on behalf of both union employees, who pay dues and fees, and non-union employees, who don’t.

A month after the AFL-CIO filed suit in 2016, Kanawha County Circuit Judge Jennifer Bailey issued a preliminary injunction blocking enforcement of the law.

In September 2017, the state Supreme Court overruled Bailey’s injunction, and right-to-work became law. Former Justice Menis Ketchum wrote in the majority opinion that unions failed to argue, beyond a reasonable doubt, which provision in the West Virginia Constitution right-to-work law violates.

Bastress pushed back against this claim Wednesday, calling the phrase “beyond a reasonable doubt” an unheard of standard in constitutional law, and that it’s only applicable to criminal law.

Bailey again ruled on the case last year, issuing a final decision in February 2019, that struck down parts of the law.

She called these portions unconstitutional because it allows workers to refuse paying union dues and fees, but unions must still represent those workers when negotiating wages and benefits.

Bailey ruled right-to-work represents an unconstitutional taking of unions’ property, because unions are required by federal law to represent workers at union workplaces, whether those workers are union members or not. That argument was the same one made by unions when they first filed the lawsuit in July 2016.

On Wednesday, See argued while federal law requires unions to negotiate on behalf of all employees, Congress has passed legislation allowing individual states to pass their own right-to-work laws.

See added that there is nothing in the law that forces unions to engage in collective bargaining.

On March 29, 2019, the court halted proceedings on the case, and a stay was issued to keep the law intact. That set the stage for Wednesday, where the Court heard oral arguments.

At the beginning of the trial, Justice Margaret Workman noted the trial’s focus was on the legality of non-union employees reaping the benefits of collective bargaining, while not paying union dues or fees. She later asked if any other states had tried a case where this was the narrowed focus.

See said there were six states that had tried such cases.

Workman asked if this would essentially destroy the power unions hold in negotiating wages, to which See replied that hadn’t been the case in those states.

Justice Beth Walker asked Bastress if there was anything that changed since the last time this case came before the Court in 2017. Bastress said the union believed Ketchum’s opinion never addressed their main concerns.

See, however, argued the 2018 U.S. Supreme Court case, Janus v. AFSCME, placed a powerful thumb on the scale on the side of Attorney General Patrick Morrisey’s office. In a 5-4 decision, the Court ruled it is unconstitutional to force public employees to pay agency fees to unions.

Bastress argued that decision would not apply to private sector employers.

Because Chief Justice Tim Armstead was Speaker of the House when Senate Bill 1 was passed, he was disqualified from hearing the case. Justice Evan Jenkins served as chief justice for the trial, and Cabell County Circuit Judge Gregory Howard filled in for Armstead.

Reach Joe Severino at joe.severino@wvgazettemail.com, 304-348-4814 or follow @jj_severino on Twitter.

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