The Supreme Court of Appeals for West Virginia ruled Tuesday that if a worker says, “No, thank you, I’d rather not be a union member,” he is not engaging in robbery.
That was essentially one of the arguments that the West Virginia branch of the AFL-CIO and its allies had employed in an attempt to knock down the state’s right to work law. They claimed that if a worker refused to hand over part of her paycheck, she was engaging in an unconstitutional “taking” of property from the union.
If that sounds like a weak argument, that’s because it is. Yet, the unions have pushed it in West Virginia and other states because it is just about the best legal argument they have. Opposing a right to work law means opposing individual workers’ right of free association. So, when a union has to make that case, the logic tends to get a bit tortured.
That’s not to say that the state AFL-CIO and its allies didn’t get creative in trying to knock down West Virginia’ s law. In addition to the takings argument, they argued that allowing workers to keep their paychecks infringed on the unions’ right of association and infringed on its liberty as well.
But as the court majority noted, all the law says is that it is individual workers’ right to decide whether they want to join:
There simply is nothing in the Act that prevents workers from voluntarily associating with labor unions; instead, the Act operates to protect workers from being forced to associate with labor organizations they do not wish to join or fund. The Act also does not take property.
It is not as though unions haven’t had time to come up with a better argument. The federal government made it legal for states to enact right to work laws when it amended the National Labor Relations Act in 1947; today 27 states have versions of such laws. But is has only been in the last decade or so that the laws have been adopted by states with strong union traditions like Michigan, Indiana, or West Virginia, which has unions worried. And it shows.
Tuesday’s West Virginia court ruling was notable because, while all four justices hearing the case concurred in upholding the state’s law, two released concurring opinions making clear that they were union supporters. They just couldn’t see a constitutional way to toss out the law.
“No other court in America has found a right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different,” noted Justice John Hutchison, in an opinion concurring with the majority that otherwise showers praise on unions.
Justice Margaret Workman, meanwhile, wrote in her opinion that the right to work laws were an effort to “to choke off the lifeblood of labor unions” but also concurred. She noted that just two years ago the U.S. Supreme Court, in its 2018 Janus v. AFSCME decision, ruled that public sector workers couldn’t compelled to pay dues to union. “[T]here 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’ union,” Workman said.
In other words, right to work’s critics just don’t have a constitutional leg to stand on. They either need to come up with better arguments or start thinking about how they can live with right to work laws. Here’s an idea: Stop thinking of workers who object to being in a union as deadbeats and start trying to find out how to make membership attractive to them.