Morrisey v. West Virginia AFL-CIO

Docket Watch 2020

By Elbert Lin

Just over four years after its enactment, West Virginia’s Right to Work law (the Act) has been definitively upheld by the State’s highest court.  In February 2016, the West Virginia Legislature passed the Act, overrode the Governor’s veto, and made West Virginia the 26th state to enact right-to-work legislation.  Among other things, the law bans collective bargaining agreements that require non-union employees to pay any dues or fees as a condition of employment.  Labor unions challenged the law as violating the West Virginia Constitution.   On April 21, 2020, the West Virginia Supreme Court of Appeals conclusively rejected these arguments, overturned the trial court for the second time, and remanded the case for judgment to be entered for the State.[1] 

The State’s highest (and sole) appellate court had previously found the unions’ constitutional arguments likely to fail.  In September 2017, the Supreme Court of Appeals reversed a preliminary injunction of the Act.  The high court concluded that the unions “had failed to establish, beyond a reasonable doubt, any likelihood of success on the merits as to any of the three theories they argued in support of a finding that the Act is unconstitutional.”[2]  But on remand, the trial court proceeded to enter a permanent injunction, despite “the absence of any additional evidence or arguments,” leading to the second appeal.[3] 

Joined by four of the five justices, the majority opinion in the latest appeal held that “the Act does not violate constitutional rights of association, property, or liberty.”[4]  In so doing, the majority noted that states are “expressly authorized” by the National Labor Relations Act to enact right-to-work laws, that seventeen have laws “like” West Virginia’s, and that no appellate court anywhere has found a right-to-work law unconstitutional.[5]  The majority also stressed that the trial court “clearly erred in its application of” the high court’s previous reversal of the preliminary injunction.[6]

As to associational rights, the majority looked to two decisions of the U.S. Supreme Court, after concluding that the West Virginia Constitution provides no greater protection “in the context of the instant matter” than the U.S. Constitution.[7]  First, the majority held the unions’ position foreclosed by the U.S. Supreme Court’s seventy-year-old decision in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co.,[8] which “rejected the argument that the government infringed upon the rights of the labor organizations by refusing to compel union membership as a condition of employment.”[9]  Second, the majority also found support in Janus v. American Federation of State, County & Municipal Employees,[10] in which the U.S. Supreme Court recently “highlighted the importance of protecting the rights of workers to be free from financially supporting labor organizations whose views they do not share.”[11]  The majority acknowledged that Janus concerned public-sector unions, but explained that “[w]orkers in the private sector have no less of a right than public sector employees to be free from forced association with a labor organization.”[12]

As to property rights, the majority rejected on several grounds the unions’ argument that, by depriving unions of non-member fees, the Act effectuates an uncompensated taking because unions must still provide services to non-member employees.  For one, the majority explained that the obligation on unions to represent all employees is imposed by federal law, not by the Act.  Moreover, unions “actually do receive compensation for their duty to represent all employees in a bargaining unit.”[13]  As explained in Janus, unions receive “exclusive” bargaining status in exchange for that duty, giving them “a privileged place in negotiations over wages, benefits, and working conditions”—a “tremendous increase” in power.[14]

As to liberty rights, the majority was brief.  The trial court found the Act arbitrary and violated substantive due process because it requires unions “to provide expensive services for nothing.”[15]  The majority reiterated that “[t]he obligation to provide services to nonmembers is imposed on labor organizations by federal law, not the Act, and they are compensated for those services.”[16]

Two justices wrote separately.  Justice Hutchison joined the majority in full, but concurred in a short opinion to stress his duties as a justice.  After extolling the virtues of unions, Justice Hutchison explained that he “do[es] not approach this question as a legislator or as a private citizen,” but as a justice.[17]  As such, he must respect that “[w]ith almost clarion unity, courts repeatedly hold that legislatures may give rights to unions and can just as quickly take those rights away with constitutional impunity.”[18]

Justice Workman “reluctantly” concurred in the judgment only.[19]  She thought the trial court’s “carefully crafted decision” was “absolutely correct in its associational rights and takings analyses … at the time it was written, in a pre-Janus world.”[20]  And even though Janus was “wrongly decided” by the U.S. Supreme Court, it now “compel[s]” the majority’s outcome.[21]  Justice Workman criticized the majority for giving short shrift to whether the West Virginia Constitution provides more protection to unions than the U.S. Constitution as interpreted in Janus, but she ultimately could not “say with certainty” that the West Virginia Constitution should be so construed, as striking down a right-to-work law would make West Virginia an “outlier” on a “long, lonely limb.”[22]  Justice Workman also disagreed that the Act “was enacted for a beneficial purpose.”[23]  In her view, the law reflects “a mad rush in state legislatures, including our own, to choke off the lifeblood of labor unions” and “was intended to sound the death knell for both public and private workers’ unions in West Virginia.”[24]

To view this article on the Federalist Society’s website, click here.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Mr. Lin represented the U.S. Chamber of Commerce as amicus curiae in the case, and at the preliminary injunction stage was the WV Solicitor and counsel for the State. Mr. Lin’s views expressed here are his own and do not necessarily reflect the view of his clients.

[1] Morrisey v. West Virginia AFL-CIO, No. 19-0298, 2020 WL 1982284 (W. Va. Apr. 21, 2020) (Slip opinion available at

[2] Slip op. at 18.

[3] Id. at 1.

[4] Id. at 2.

[5] Id. at 33-34.

[6] Id. at 64.

[7] Id. at 26.

[8] 335 U.S. 525 (1949).

[9] Slip op. at 38.

[10] 138 S. Ct. 2448 (2018).

[11] Slip op. at 45.

[12] Id.

[13] Id. at 53.

[14] Id. at 53-54 (internal quotations omitted).

[15] Id. at 61 (internal quotations omitted).

[16] Id. at 64.

[17] Slip op. (Hutchison, J., concurring) at 5 (available at

[18] Id.

[19] Slip op. (Workman, J., concurring and dissenting) at 1 (available at

[20] Id. at 2.

[21] Id. at 1-2.

[22] Id. at 17.

[23] Id. at 6.

[24] Id. at 4, 10.

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