No. 19-0298 – Patrick Morrisey, West Virginia Attorney General,
              and The State of West Virginia v. West Virginia                 FILED
              AFL-CIO; West Virginia State Building and                 April 21, 2020
              Construction Trades Council, AFL-CIO; United                released at 3:00 p.m.
                                                                      EDYTHE NASH GAISER, CLERK
              Mine Workers of America, AFL-CIO; Chauffeurs,           SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA
              Teamsters, and Helpers, Local No. 175; Amanda
              Gaines; and International Brotherhood of Electrical
              Workers, AFL-CIO, Locals 141, 307, 317, 466, 596, and 968

Justice Hutchison, concurring:

              The majority opinion presents an analysis of West Virginia’s 2016 “right to

work” laws that says those laws are constitutional. The law dictates that I must concur

because the gist of the majority opinion is true: what the Legislature gives, the Legislature

can constitutionally take away. No other court in America has found a right-to-work

legislative enactment unconstitutional, and the majority opinion has done nothing different.


              Before and after legislatures passed laws to encourage and protect

unionization (or, more recently, to discourage unionization), unions fought hard to

organize, and they worked diligently to bring collective bargaining to industrial worksites.

Their efforts led to dramatic improvements in safety and productivity. 1 Unions pushed

employers to give us forty-hour weeks and weekends off, paid vacation and holidays, an

eight-hour workday and overtime pay. These benefits paved the way for American workers

to become some of the most productive in the world. Unions also fought for Social Security


              1
                “[U]nions typically play a critical role in educating workers about on-the-
job hazards; giving workers incentives to take greater care on the job; attracting more
safety-conscious workers; inducing employers to abate known hazards; increasing
regulatory scrutiny; and developing safety-related innovations.” Alison D. Morantz, Coal
Mine Safety: Do Unions Make a Difference?, 66 Indus. & Lab. Rel. Rev. 88-89 (2013).

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and pension benefits, workers’ compensation and unemployment insurance. They have

pushed for the elimination of gender and racial discrimination. And unions are the reason

employers provide health insurance. For over a century, American unions have worked to

protect individuals and to ensure workers are not treated as consumable commodities.


              To see the effectiveness of union involvement in the protection of workers,

one only has look at the decreasing numbers of disasters and deaths in coal mines. The

National Institute of Occupational Safety and Health (“NIOSH”) compiled a list of coal

mine disasters in West Virginia from January 1886 through April 5, 2010. 2 NIOSH defines

a “disaster” as an event (like a fire, explosion, roof fall, coal bump, etc.) in which five or

more miners die. The last such disaster in West Virginia was at the Upper Big Branch

Mine in Montcoal on April 5, 2010 (exactly ten years before my writing of this concurring

opinion).


              Unions first received significant legal protection when the National Labor

Relations Act was passed by Congress in 1935. With much encouragement from the

United Mine Workers of America, Congress passed the Mine Safety and Health Act of

1969. West Virginia adopted state protections for unions and workers between 1965 and

1971. This legislation provided fertile ground for unions to flourish.




              2
                See https://www.cdc.gov/niosh/mining/statistics/content/coaldisasters.html
(last accessed April 5, 2020).

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              NIOSH statistics illustrate that as unionization grew in the mines, there was

a “sizable and robust decline in both traumatic injuries and fatalities.” 3 The statistics show

that in West Virginia, from 1886 until 2010, there were a total of 101 coal mining disasters

claiming 2,617 lives. Viewed at a more granular level, the statistics show 94 disasters

before 1971 – about 1.1 coal mining disasters per year; after 1971 (the year of the last West

Virginia enactment) and through 2010, there were only seven coal mining disasters – about

.18 per year, which works out to one disaster every five-and-a-half years. The numbers of

deaths have also dropped. Between 1886 and 1971, 2,442 miners died in disasters at a rate

of 28 per year; in the 39 years from 1971 to 2010, 175 died at a rate of 4.5 per year. Indeed,

“unionization is associated with a significant decline in those mine accidents[.]” 4


              While it is a broad simplification to attribute the substantial decrease in loss

of life and limb or in the occurrence of coal mining disasters to only union activity, union

activity had a substantial impact. Moreover, unions had a substantial impact on correcting


              3
                Morantz, 66 Indus. & Lab. Rel. Rev. at 99. “[U]nionization predicts a 14
to 32% drop in traumatic injuries and a 29 to 83% drop in fatalities.” Id. at 89-90. See
also, Alison Morantz, Does Unionization Strengthen Regulatory Enforcement? An
Empirical Study of the Mine Safety and Health Administration, 14 N.Y.U. J. Legis. & Pub.
Pol’y 697, 702 (2011) (“[T]wo recent studies find that unionization predicts a robust,
sizable decline in the frequency of serious mining accidents.”); William M. Boal, The
Effect of Unionism on Accidents in U.S. Coal Mining, 1897-1929, 48 Indus. Rel. J. 97, 117
(2009) (“[U]nionism [between 1897 and 1929] lowered accident fatalities in coal mines by
somewhere between 20 and 60 percent, even after controlling for state safety regulations,
changes in employer liability, Workers’ Compensation, and allegedly dangerous mining
techniques like machine mining or ‘shooting off the solid.’ The effect of unionism on
fatalities was equivalent to about five state safety regulations.”).
              4
                  Morantz, 66 Indus. & Lab. Rel. Rev. at 101.

                                              3
conditions of low wages, unsanitary conditions, child labor, nepotism, and a host of other

negative workplace influences.


              Unions rose and grew to combat the wrongs that employees faced in the

workplace. Right-to-work laws serve to undermine unions, and no matter how optimistic

I am, my years as a judge have taught me this: those wrongs will more likely than not rise

again. Much like a democracy, only collective action by a majority of the people, working

together, can combat wrongs. A house divided against itself will fall. 5


              As the majority opinion relates, Congress passed the National Labor

Relations Act in 1935 to protect unions and encourage collective bargaining. In 1947,

Congress passed the Taft-Hartley Act to whittle down the very same rights it created in

1935. The Taft-Hartley Act recognized that States could adopt laws to “prohibit employers

and unions [from] negotiat[ing] agreements requiring compulsory union membership, or

requiring nonunion employees to pay dues or fees to the union.” 6 Thus, Congress gave,

and Congress took away.


              In the same way, the West Virginia Legislature created protections for unions

in 1965 and 1971 when it crafted a Labor-Management Relations Act. In 2016, the

Legislature passed the right-to-work legislation at issue in this case. As the majority



              5
                  See Mark 3:25; Luke 11:17.

              Morrisey v. W.Va. AFL-CIO, 239 W. Va. 633, 640, 804 S.E.2d 883, 890
              6

(2017) (“Morrisey I”). See generally, 29 U.S.C. § 164(b) (2012).

                                               4
opinion notes, the 2016 right-to-work laws stripped away many union protections. What

the Legislature gave, the Legislature had the power to later take away.


               This Court has often said that questions of public policy are within the realm

of the Legislature. The guiding rule for any Justice is this:

                       This Court does not sit as a superlegislature,
               commissioned to pass upon the political, social, economic or
               scientific merits of statutes pertaining to proper subjects of
               legislation. It is the duty of the Legislature to consider facts,
               establish policy, and embody that policy in legislation. It is the
               duty of this Court to enforce legislation unless it runs afoul of
               the State or Federal Constitutions. 7

Many people in the state of West Virginia might personally disagree with the Legislature’s

decision to enact a right to work law and question the propriety of the policy propounded

by such legislation. However, I do not approach this question as a legislator or as a private

citizen. I approach it as a Justice, and as a Justice, I must defer to the decision of legislators,

acting together, whom the people elect every two to four years.


               I have studied past challenges to right-to-work laws, and I have read

countless United States Supreme Court cases and lower federal court cases and state court

cases. With 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. The

Morrisey I Court acknowledged as much in 2017, saying that “[t]wenty-seven other states




               7
                   Syllabus Point 2, Huffman v. Goals Coal Co., 223 W. Va. 724, 679 S.E.2d
323 (2009).

                                                5
have adopted right to work laws similar to West Virginia’s, and the unions have not shown

a single one that has been struck down by an appellate court.” 8 The Morrisey I Court hinted

that the unions’ lawyers needed to come up with better legal arguments. Having read the

work of other courts, at this point I don’t think there is a better argument. I now think the

solution lies in the ballot box, not the courtroom.


              Having taken a constitutional oath as a Justice, it is my sworn duty to uphold

the law. I am, therefore, compelled by the law and my obligations as a Justice to

respectfully concur with the majority opinion.




              8
                  Morrisey I, 239 W. Va. at 639, 804 S.E.2d at 889.

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