Unions may have gotten a lot more than they bargained for when the West Virginia Supreme Court ruled against them in April.
This spring, the West Virginia high court upheld the state’s right-to-work law. That part of the ruling was no surprise, as courts for over 70 years have said right-to-work laws are constitutional.
Perhaps the more significant part of the ruling, which garnered less attention, is that the court essentially said the entire country should be right-to-work.
Right-to-work simply means that a union cannot get a worker fired for not paying the union. A right-to-work law gives workers the freedom to support a union if they are doing a good job, and refrain from supporting a union if they wish.
In 2018, the U.S. Supreme Court held in Janus v. AFSCME that everything government unions do is political and that public employees have a First Amendment right to decide to support their union or not. The Janus case brought right-to-work to public employees across the country.
The U.S. Supreme Court’s decision was limited to public sector unions, which bargain over matters of public policy such as how tax dollars are spent.
The court did not directly address the First Amendment rights of private-sector employees, but it may have signaled its willingness to do so in the future. Specifically, it may eventually ask whether or not state and federal involvement in the labor market, through laws that allow workers to be forced to pay unions, is enough “state action” to potentially violate the First Amendment rights of private-sector employees. In a footnote, the court wrote that it “reserved decision on this question.”
In its April ruling, the West Virginia Supreme Court may have been the first court to recognize this potential. It said, “The fact that forcing private workers to subsidize a labor organization may not implicate matters of substantial public concern at the same level as the public workers at issue in Janus, we find this distinction of no moment.”
The court continued, “Workers in the private sector have no less of a right than public sector employees to be free from forced association with a labor organization.”
The West Virginia high court is saying that the Janus opinion should be applied to the private sector. If the U.S. Supreme Court similarly ruled that Janus applies to the private sector, it would mean that all employees, public and private, in every state would have right-to-work protections.
Mark Carter, a West Virginia labor and employment lawyer at Dinsmore who submitted a brief in support of West Virginia’s right-to-work law, recently wrote that “the precedent supporting this decision may inform lawyers regarding the courts evolving perspective” of forcing workers to pay unions. In other words, this could be the start of a lot of lawsuits aiming to protect the freedom of private-sector workers.
This West Virginia case is likely over, and it will not go to the U.S. Supreme Court. But the fact that a majority opinion of the U.S. Supreme Court wrote it would “reserve decision on this question” in Janus shows that members of the court may be willing to take a future case.
Even West Virginia Justice Margaret Workman, who was critical of right-to-work, agreed in part and disagreed in part with the decision, writing, “I also believe that although Janus was a decision involving only public employees’ unions, you don’t need a weatherman to know which way the wind blows; there is no principled basis on which to conclude that under the legal analysis upon which Janus is based, a prohibition on the collection of agency fees is constitutional for public employees’ unions but unconstitutional for private employees’ unions.”
Currently, 23 states can force private sector employees to pay unions. Similarly, airline and railroad employees, who are governed by a separate federal law, are also forced to support unions whether they want to or not.
If the U.S. Supreme Court does eventually decide the question with the same reasoning as the West Virginia Supreme Court, then all employees, public and private, will have the right to choose whether or not the union at their workplace is doing a good job and if they want to support it.
After all, freedom is blowing in the wind.
F. Vincent Vernuccio is a senior fellow at the Mackinac Center for Public Policy, a research and educational institute in Midland, Michigan.