Commentary

Compulsory Unionism ‘By a Government Decree’ in West Virginia?

Stan Greer
By Stan Greer | July 24, 2019 | 4:29 PM EDT

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Roughly three-and-a-half years ago, pro-Right to Work West Virginia legislators overrode Big Labor Democrat Gov. Earl Ray Tomblin’s veto to make the Mountain State the 26th to prohibit union officials from forcing employees to fork over a portion of their paychecks to get or keep a job.

Since the West Virginia Right to Work law was adopted and implemented, rank-and-file employees in the state have clearly been faring better economically.   

For example, last year nonfarm wage-and-salary income in the Mountain State soared by a hefty 7.0 percent, nearly triple the national rate of inflation as measured by the consumer price index.  West Virginia’s wage-and-salary income gain was greater than those of 47 of the other 49 states, and more than 50 percent greater than the national average.

But the Big Labor officials who are the self-styled “representatives” of working men and women are furious about losing their special privilege to extract compulsory dues and fees from employees who personally don’t want a union.

The AFL-CIO hierarchy knows full well that West Virginians generally and their own rank-and-file in particular strongly support Right to Work.  In fact, in early 2016, then–state AFL-CIO President Kenny Perdue admitted to The Washington Post reporter Lydia DePillis that union “members were our … worst enemy” during Big Labor’s unsuccessful efforts to stall the growth in opposition to compulsory unionism in the West Virginia Legislature during the 2015 state elections.

Well aware that their lack of public support will make it difficult for them to reinstate forced union financial support legislatively, Organized Labor strategists have tried repeatedly to get West Virginia’s Right to Work law overturned in court.

One such legal scheme was rebuffed by the state Supreme Court in 2017.  But in the coming months the same court is expected to take up the issue again in a long running anti-Right to Work lawsuit filed by union lawyers for the West Virginia AFL-CIO.

The AFL-CIO legal team has its work cut out for it in Charleston, because, as state Attorney General Patrick Morrisey and National Right to Work Legal Defense Foundation attorneys filing an amicus brief on behalf of independent-minded West Virginia nursing assistant Donna Harper have both emphasized, more than 70 years of court precedents, including Supreme Court decisions, have upheld the constitutionality of state Right to Work laws.

Apparently, because the case law affirming that state Right to Work statutes are compatible with the U.S. Constitution and the National Labor Relations Act (NLRA) is ample, AFL-CIO union lawyers are basing their legal attack on the Mountain State law on their creative reinterpretation of a handful of provisions in the West Virginia Constitution.

Taken together, these provisions, claim Big Labor lawyers, give union officials in the state a constitutional right to seize so-called “agency” fees from union nonmembers on pain of termination if they refuse. 

That is not a credible reading of Article III of the West Virginia Constitution. Moreover, such a reading would put West Virginia law in direct conflict with the NLRA, rendering the state law unenforceable under the federal preemption doctrine.

As the Foundation brief on behalf of Ms. Harper explains in detail, labor statutes permitting employers to refuse to acquiesce to Big Labor demands for a forced-dues provision in a workplace contract would be in conflict with the West Virginia Constitution if the AFL-CIO interpretation of that document were correct. Yet the NLRA clearly does permit employers to stand up for their employees’ freedom of choice.

The West Virginia Constitution simply cannot prohibit what a valid federal labor statute permits.

Besides being legally untenable, the radically pro-union coercion theories being espoused by AFL-CIO lawyers in their West Virginia litigation represent a form of state tyranny very similar to what President Franklin Delano Roosevelt warned against in 1941.

Regarding a Big Labor demand that the tripartite National Defense Mediation Board he had recently created impose a forced-unionism shop on all bituminous coal mines operated by steel companies, FDR declared:

“The government will never compel this 5 percent [the nonunionists] to join the union by a Government decree.  That would be too much like the Hitler methods toward labor.”

Stan Greer is a Senior Research Associate for the National Institute for Labor Relations Research.

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