Commentary

West Virginia Supreme Court Tests Unions' Novel Theory

Mackinac Center files brief supporting worker freedom

About the time Michigan and some of the surrounding Midwestern states were adopting right-to-work laws, several unions decided to try a new challenge to these laws. Right-to-work laws allow employees to choose whether to pay a union or not. When states do not have right-to-work laws, employees can be fired if they do not pay money to a union.

Unions do not like right-to-work laws because it means people do not have to pay them. It is unsurprising, therefore, that unions fight back against the elimination of coerced income. One newer legal theory they used to fight these laws is this: Allowing employees to avoid paying while unions still have to treat everyone in the workplace equally constitutes “a taking.” In other words, unions argue they are being forced by the government against their will to represent employees who aren’t paying them.

To accept this theory, one has to overlook the many benefits that the law confers on unions. Unions are provided with very lucrative rights and economic powers by the federal National Labor Relations Act and comparable state laws. Right-to-work laws may diminish these privileges by a small amount, but being a labor union means being given valuable economic benefits that any other group would have to pay dearly for. Unions are given substantial controlling rights — the ability to significantly influence the actions of a company — that anyone else could only acquire by buying a large amount of a company’s stock.

A majority of states are now right-to-work states. Nevertheless, unions operate successfully in all 50 states. A recent survey found that unions altogether collected annual dues of $8.6 billion and had assets of $9.1 billion.

This theory that right-to-work laws are an illegal financial imposition placed on unions has failed to win the support of the courts, until now. A lower court in West Virginia accepted this theory and ruled that West Virginia’s right-to-work law was illegal on this basis.

The matter is now before the West Virginia’s highest state court, and the Mackinac Center has filed a friend-of-the-court brief in support of their attorney general defending their law. The Center’s brief outlines the many benefits that labor law provides to unions and shows that, even in right-to-work states, these benefits are far greater than any costs imposed on the unions by the laws.

In short, unions want all the benefits the labor laws provide, but don’t want some of the corresponding responsibilities. But that is the basic bargain that unions enter into: They are given numerous economic powers and privileges, and all they have to do in return is treat all the employees in the workplace equally. The law even allows unions to create so-called “members only” unions which don’t have to represent non-dues-paying members, but then they would not get the many legal benefits awarded to unions who choose to represent all the employees in the workplace. Clearly, the unions prefer the full net benefits conferred upon them by labor laws, even with the requirement to represent all — for that is the path they chose. The imposition of representing all bargaining unit members does not outweigh the many benefits. No major union chooses to be a members-only union.

Hopefully this pernicious legal theory ends in West Virginia.