No. 17-0187 –	       Patrick Morrisey, in his official capacity as West Virginia Attorney
                     General, and The State of West Virginia v. West Virginia AFL-CIO, et
                     al.
                                                                     FILED
                                                                 October 2, 2017
                                                                     released at 3:00 p.m.
                                                                   RORY L. PERRY, II CLERK

                                                                 SUPREME COURT OF APPEALS

                                                                      OF WEST VIRGINIA

Davis, Justice, dissenting:

              It is well-established that

              “[t]he designation of a union as exclusive representative carries
              with it great responsibilities. The tasks of negotiating and
              administering a collective-bargaining agreement and
              representing the interests of employees in settling disputes and
              processing grievances are continuing and difficult ones. They
              often entail expenditure of much time and money. The services
              of lawyers, expert negotiators, economists, and a research staff,
              as well as general administrative personnel, may be required.
              Moreover, in carrying out these duties, the union is obliged
              fairly and equitably to represent all employees . . ., union and
              nonunion, within the relevant unit.”

Lenhert v. Ferris Faculty Ass’n, 500 U.S. 507, 552-53, 111 S. Ct. 1950, 1976, 114 L. Ed. 2d

572 (1991) (Scalia, J., concurring, in part, and dissenting, in part) (emphasis added) (quoting

Abood v. Detroit Bd. of Educ., 431 U.S. 209, 221-22, 97 S. Ct. 1782, 1792-93, 52 L. Ed. 2d

261 (1977) (additional quotations and citations omitted; footnote omitted)). The majority’s

misapprehension of the realities of the collective bargaining process notwithstanding,1 the


              1
               My brethren suggest that the Respondent unions, themselves, have created the
problem which they now ask the judiciary to solve by declaring the subject statutory scheme
unconstitutional insofar as the unions, themselves, have sought the coveted position as
exclusive representative of their employees, and, thus, necessarily have incurred and assumed
                                                                                 (continued...)

                                              1

Respondent unions herein acknowledge and embrace their duty of fair representation and

neither shirk nor deny their responsibility to union and nonunion members alike.



              In its opinion, the majority opines that the case sub judice raises concerns of

fairness. This is an absolutely correct statement of the issues underlying the instant

proceeding because the Respondent unions rightfully question how it can be fair that they are

required to expend time and resources to ensure that nonunion members are equally

represented while those same nonunion members are allowed a free ride2 to benefit from the




              1
                (...continued)
the expenses attributed to the free-riding nonunion employees. This brief summation of the
majority’s understanding of the issue demonstrates an inordinate lack of comprehension of
basic tenets of labor law: the election of an exclusive union representative is a matter of
necessity, not of choice. But for the existence of an exclusive union representative to
facilitate negotiations, there would be no collective bargaining agreement to reconcile and
govern the often divergent and discordant interests of employers and employees in the first
instance, and the entire statutory scheme at issue herein, which seeks to regulate such union
activities, would be a mere nullity.
              2
               The term “free rider” refers to nonunion members who nevertheless are
represented by their unit’s exclusive representative union: “‘the free rider Congress had in
mind was the employee the union was required to represent and from whom it could not
withhold benefits obtained for its members.’” Lenhert v. Ferris Faculty Ass’n, 500 U.S. 507,
552-53, 111 S. Ct. 1950, 1976, 114 L. Ed. 2d 572 (1991) (Scalia, J., concurring, in part, and
dissenting, in part) (quoting Ellis v. Brotherhood of Ry., Airline & S.S. Clerks, Freight
Handlers, Express & Station Emps., 466 U.S. 435, 452, 104 S. Ct. 1883, 1894, 80 L. Ed. 2d
428 (1984)).

                                             2

union’s collective bargaining activities without having to contribute to the cost of providing

such services.3 Indeed, there exists

              a correlation between the rights and duties of the union, on the
              one hand, and the nonunion members of the bargaining unit, on
              the other. Where the state imposes upon the union a duty to
              deliver services, it may permit the union to demand
              reimbursement for them; or, looked at from the other end, where
              the state creates in the nonmembers a legal entitlement from the
              union, it may compel them to pay the cost.

Lenhert, 500 U.S. at 556, 111 S. Ct. at 1978, 114 L. Ed. 2d 572 (Scalia, J., concurring, in

part, and dissenting, in part) (emphasis added). This quid pro quo arrangement, condoned

by Congress and secured by constitutional protections, seeks to promote the dual interests of

unions in providing collective bargaining services to all employees without regard for union

membership and of employees in choosing not to become union members, while ensuring

that all employees benefitting from such services share in the cost of their provision.




              3
                  To this end,

              [u]nder th[e] [fair representation] doctrine, the exclusive agent’s
              statutory authority to represent all members of a designated unit
              includes a statutory obligation to serve the interests of all
              members without hostility or discrimination toward any, to
              exercise its discretion with complete good faith and honesty, and
              to avoid arbitrary conduct.

Vaca v. Snipes, 386 U.S. 171, 177, 87 S. Ct. 903, 910, 17 L. Ed. 2d 842 (1967) (citation
omitted).

                                              3

              Nevertheless, while the majority astutely recognizes that matters of public

policy are within the realm of the Legislature, it fails to appreciate that matters of

constitutionality squarely reside in the judicial branch of government. By this I mean that

while statutes must be read so as to conform to the constitution where possible,4 it is not the

Court’s province to contort the law to achieve a finding of constitutionality by resorting to

“disingenuous evasion” to achieve a result that clearly is contrary to legislative intent.

Communications Workers of Am. v. Beck, 487 U.S. 735, 762, 108 S. Ct. 2641, 2657, 101

L. Ed. 2d 634 (1988) (internal quotations and citations omitted). In establishing the federal

framework within which the instant controversy is reposed, the majority stops short of

considering the law governing the resolution of the issue herein presented, concluding

succinctly that, “[i]n sum, under federal law, states may decide whether to allow or prohibit

employers and unions to negotiate agreements requiring compulsory union membership, or

requiring nonunion employees to pay dues or fees to the union.” (Emphasis added). Because

the majority fails to consider the applicable federal law, however, it inevitably misconstrues

the limitations on states’ authority to regulate union activity and ignores the clear recognition

that Congress, not the states, has defined the extent to which a nonunion employee may be



              4
               See Frantz v. Palmer, 211 W. Va. 188, 194, 564 S.E.2d 398, 404 (2001)
(recognizing Court’s “obligation to respect the legislative will and to uphold all
constitutionally valid legislative provisions” (citation omitted)); State ex rel. City of
Charleston v. Coghill, 156 W. Va. 877, 883, 207 S.E.2d 113, 118 (1973) (“Acts of the
Legislature are always presumed to be constitutional, and this Court will interpret legislation
in any reasonable way which will sustain its constitutionality.”).

                                               4

required to pay representational fees to a union. In light of these shortcomings in the

majority’s opinion, I respectfully dissent.



                                          Preemption

              Congress enacted the Labor Management Relations Act (“LMRA”)5 to provide

uniformity and predictability in the field of labor law by establishing the permissible bounds

of relationships between unions, employers, and employees. “‘[I]n passing the NLRA[6]

Congress largely displaced state regulation of industrial relations,’ and thus, states ‘may not

regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits.’”

Simms v. Local 1752, Int’l Longshoremen Ass’n, 838 F.3d 613, 617 (5th Cir. 2016) (quoting

Wisconsin Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286, 106

S. Ct. 1057, 1061, 89 L. Ed. 2d 223 (1986)) (footnote added; additional citation omitted).

Section 8(a)(3) of the LMRA precludes compulsory union membership as a condition of

hiring for employment, but still allows employers and unions to enter agreements to require,

as a condition of continued employment, employees to join a union after they have been

employed for a specified period of time. See generally 29 U.S.C. § 158(a)(3). The validity

of such an arrangement, while permitted under federal law, may nevertheless be altered by




              5
                  This Act is also known as the Taft-Hartley Act.

              6
                  The NLRA, i.e., National Labor Relations Act, is the predecessor to the

LMRA.

                                               5

the exercise of a state’s authority to determine whether such compulsory union membership

may be required under state law. See 29 U.S.C. § 164(b) (“§ 14(b)”).



              Despite Congress’ grant of such authority to the states, however, the United

States Supreme Court consistently has recognized that free riders, i.e., nonunion members

who enjoy the benefits of a union’s collective bargaining activities through the union’s duty

of fair representation but who, as nonunion members, do not correspondingly pay union dues

to reimburse the cost of the union’s provision of such services, have an “obligation to support

union activities . . . germane to collective bargaining, contract administration, and grievance

adjustment.” Beck, 487 U.S. at 745, 108 S. Ct. at 2648, 101 L. Ed. 2d 634. In this regard,

the Supreme Court has recognized that “Congress authorized compulsory unionism only to

the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to

their cost,” id., 487 U.S. at 746, 108 S. Ct. at 2649, 101 L. Ed. 2d 634, “but the ‘membership’

that may be so required has been ‘whittled down to its financial core.’” Id., 487 U.S. at 745,

108 S. Ct. at 2648, 101 L. Ed. 2d 634 (quoting National Labor Relations Bd. v. General

Motors Corp., 373 U.S. 734, 742, 83 S. Ct. 1453, 1459, 10 L. Ed. 2d 670 (1963)). Stated

otherwise, “‘Congress’ decision to allow union-security agreements at all reflects its concern

that . . . the parties to a collective bargaining agreement be allowed to provide that there be

no employees who are getting the benefits of union representation without paying for




                                              6

them,’”7 by “ensuring that nonmembers who obtain the benefits of union representation can

be made to pay for [their fair share of] them.”8



              Having recognized these corresponding rights and obligations of unions and

free-rider nonunion members, it is important to note that the United States Supreme Court

has not declared that the authority of states to determine their own parameters of union

membership extends so far as to require unions to undertake their duty to fairly represent

nonunion free riders on a gratis basis. And, it further should be noted that this is the

foundational context within which Senate Bill 1 was promulgated—not the incomplete

historical framework recited in the majority’s opinion that completely and conveniently

ignores the corollary duty of nonunion members to pay for the services the unions are

obligated to provide them.



              In light of Congress’ intent to permit unions to recoup representational fees

from nonunion members and to negotiate with employers to incorporate such terms in

collective bargaining agreements, it is clear that the specific terms of such an arrangement

must be decided with respect to federal, not state, law in the interest of preserving the


              7
              Communications Workers of Am. v. Beck, 487 U.S. 735, 750, 108 S. Ct. 2641,
2651, 101 L. Ed. 2d 634 (1988) (quoting Oil, Chem. & Atomic Workers, Int’l Union, AFL­
CIO v. Mobil Oil Corp., 426 U.S. 407, 416, 96 S. Ct. 2140, 2144, 48 L. Ed. 2d 736 (1976)).
              8
                  Beck, 487 U.S. at 759, 108 S. Ct. at 2656, 101 L. Ed. 2d 634.

                                               7

uniform and predictable enforcement of collective bargaining agreements. “Preemption

under the LMRA is grounded in substantial part on the desire for uniformity in the

interpretation of labor contracts.” General Motors Corp. v. Smith, 216 W. Va. 78, 88, 602

S.E.2d 521, 531 (2004) (per curiam) (Maynard, C.J., dissenting). In other words,

              [t]he interests in interpretive uniformity and predictability that
              require that labor-contract disputes be resolved by reference to
              federal law also require that the meaning given a contract phrase
              or term be subject to uniform federal interpretation. Thus,
              questions relating to what the parties to a labor agreement
              agreed, and what legal consequences were intended to flow from
              breaches of that agreement, must be resolved by reference to
              uniform federal law . . . .

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211, 105 S. Ct. 1904, 1911, 85 L. Ed. 2d 206

(1985). As such, “[t]he governing consideration is that to allow the States to control

activities that are potentially subject to federal regulation involves too great a danger of

conflict with national labor policy.” San Diego Bldg. Trades Council, Millmen’s Union,

Local 2020 v. Garmon, 359 U.S. 236, 246, 79 S. Ct. 773, 780, 3 L. Ed. 2d 775 (1959)

(footnote omitted). Thus, “[i]t is federal law alone that defines the relationship between the

parties to a labor contract, and ‘[a] state rule that purports to define the meaning or scope of

a term in [such] a contract’ is preempted.” Lowe v. Imperial Colliery Co., 180 W. Va. 518,

523, 377 S.E.2d 652, 657 (1988) (quoting Allis-Chalmers, 471 U.S. at 210, 105 S. Ct. at

1911, 85 L. Ed. 2d 206).




                                               8

              Therefore, there can be no question that this area of the law has been

preempted by Congress and is not a proper area within which the states may legislate. This

is so because arrangements between unions and employers to charge nonunion employees

with their proportionate share of the union’s collective bargaining expenses necessarily are

achieved through the collective bargaining process, itself, and the interpretation of specific

terms of a collective bargaining agreement is subject to federal law to ensure consistency in

the construction and enforcement of such agreements. See Syl. pt. 4, Greenfield v. Schmidt

Baking Co., Inc., 199 W. Va. 447, 485 S.E.2d 391 (1997) (“An application of state law is

pre-empted by § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185

(1947) (1994 ed.), only if such application requires the interpretation of a collective-

bargaining agreement.”). See also Syl. pt. 1, Cutright v. Metropolitan Life Ins. Co., 201

W. Va. 50, 491 S.E.2d 308 (1997) (“The Supremacy Clause of the United States

Constitution, Article VI, Clause 2, invalidates state laws that interfere with or are contrary

to federal law.”); Syl. pt. 4, Lowe, 180 W. Va. 518, 377 S.E.2d 652 (“While Section 301 of

the Labor Management Relations Act, 29 U.S.C. § 185 (1947), does not divest state courts

of jurisdiction in labor cases, the federal labor law is supreme and is to be applied by state

and federal courts alike. State law to the contrary is preempted.” (emphasis added)).

Accordingly, it is clear that Senate Bill 1’s prohibition of the charging of representational

agency fees to nonunion members is an invalid exercise of the State’s legislative power given




                                              9

that this particular area of the law has been preempted. To the extent that the majority has

upheld this proposed statutory language, it was wrong, and from that decision, I dissent.



                                      Constitutionality

              Assuming arguendo that the subject provision has not been invalidated by

federal preemption, the promulgation adopted by the Legislature still cannot stand because

it is unconstitutional under both the federal and State constitutions as an unlawful taking of

private property. The Fifth Amendment to the United States Constitution, also known as the

Takings Clause, prohibits the taking of private property without just compensation therefor.

“The Takings Clause provides that ‘private property [shall not] be taken for public use

without just compensation.’ U.S. Const. amend. V.” International Union of Operating

Eng’rs Local 370 v. Wasden, 217 F. Supp. 3d 1209, 1223 (D. Idaho 2016) (mem. decision).

Likewise, article III, § 9 of the West Virginia Constitution also precludes the unlawful

seizure of property: “Private property shall not be taken or damaged for public use, without

just compensation[.]” Id.



              In the case sub judice, the position that the Legislature proposes, and which the

majority of the Court endorses, would require unions serving as an exclusive representative

to equally serve union and nonunion members alike in their pursuit of collective bargaining

activities and their provision of services attendant thereto, while permitting free-riding,


                                             10

nonunion members to enjoy such benefits without paying a single dime for them.

Unquestionably, such free riders would be unjustly enriched while both the unions and their

dues-paying members would be unduly, and unfairly, punished by the necessity of absorbing

the costs associated with the free riders’ representation, which costs inevitably would trickle

down from the union’s incursion thereof to the countless union members required to

subsidize their free-riding coworkers. Moreover, this proposed, and endorsed, arrangement

directly contravenes the constitutional prohibitions of taking one’s private property both

without just compensation and for a private use:

              The two most basic economic rights enjoyed in the United States
              are (1) that the government may not confiscate private property
              for public use without just compensation, and (2) that the
              takings power must be exercised for a public purpose, and so the
              government may not take the property of one private party for
              the sole purpose of transferring it to another private party,
              regardless of whether “just” compensation is paid.

Sweeney v. Pence, 767 F.3d 654, 683 (7th Cir. 2014) (Wood, C.J., dissenting) (citing Kelo

v. City of New London, Connecticut, 545 U.S. 469, 477, 125 S. Ct. 2655, 2661, 162 L. Ed. 2d

439 (2005)). Accord Riggs v. State Rd. Comm’r, 120 W. Va. 298, 301, 197 S.E. 813, 814

(1938) (“‘Private property shall not be taken or damaged for public use, without just

compensation . . . .’ West Virginia Constitution, Article III, Section 9. It is imperative that

this paramount provision of our organic law be given effect.”); Syl. pt. 1, Hench v. Pritt, 62

W. Va. 270, 57 S.E. 808 (1907) (“Under our Constitution private property cannot be taken

for private use, either with or without compensation.”).


                                              11

              Absent the ability to seek such contributions from free riders, unions are

expected to continue providing their collective bargaining services with no recourse for

seeking recoupment of their costs of providing such representation. Legally requiring

exclusive representative unions to expend such resources while foreclosing their ability to

obtain remuneration therefor amounts to an unlawful, and unconstitutional, taking of private

property plain and simple. The unconstitutionality of this arrangement could not be clearer,

and, yet, the majority blithely ignores the impudence and inequities attendant to such a

scheme, instead blaming the unions for complaining about the representational duties they

have agreed to assume. Just because a union voluntarily agrees to assume or willingly seeks

the title of exclusive representative, however, does not mean that it should be forced to

provide its collective bargaining services free of charge. As exclusive bargaining agents

between employers and employees, Congress has recognized the valuable role unions play

in creating and maintaining harmonious workplaces and working environments in our

country. See generally Sweeney, 767 F.3d at 684 (Wood, C.J., dissenting) (discussing

benefits from exclusive representative unions enjoyed by employers). That unions accept the

responsibilities of exclusive representative status is of no moment. That free-riding nonunion

members are being excused from paying their fair share of the union’s collective bargaining

expenses that have inured to the free riders’ benefit is the problem—which the majority

declines to acknowledge, much less redress.




                                             12

               In short, the majority’s failure to recognize these fatal deficiencies of Senate

Bill 1 demonstrates its blatant lack of appreciation for the sanctity of basic constitutional

protections guaranteed by the Bill of Rights. “In our country, the state is not entitled to force

private organizations or persons to render uncompensated services to others. The Takings

Clause, which applies to the states, says as much.” Sweeney, 767 F.3d at 684-85 (Wood,

C.J., dissenting). Yet, because exclusive representative unions have an obligation to

represent all employees in a workplace fairly and without regard for their union membership

or affiliation, and the majority has failed to understand that there exists a corollary right to

expect nonunion member free riders to bear their proportionate share of the cost of the

union’s collective bargaining activities, the right to be free from the unfettered taking of

one’s property no longer is a right guaranteed by the laws of this State. Because the

preclusive effect of Senate Bill 1 leaves unions with no ability to enforce the corollary duty

of free-riding nonunion members to pay for the services which the unions are obligated to

provide to them, and because the majority has upheld the validity of this provision despite

its blatant unconstitutionality, I respectfully dissent.



                                       Injunctive Relief

               The foregoing analysis of the validity of Senate Bill 1 is essential because it

is instructive to the resolution of the pivotal issue presented by the case sub judice: are the

Respondent unions entitled to the injunctive relief they herein seek. Whether such a


                                               13

determination is made pursuant to the authorities cited in the majority’s opinion9 or according

to the standard urged by Justice Workman in her separate opinion,10 the result should be the

same: the Respondents undeniably have established their entitlement to a preliminary

injunction to prevent the enforcement of Senate Bill 1 because the Respondent unions have

demonstrated the likelihood of success on the merits of their underlying complaint.



              Moreover, with respect to the Respondent unions’ unconstitutional taking

argument, this Court specifically has held that “[a]n injunction lies to prevent the taking of

one’s private domain, for uses of the public, contrary to the constitutional mandate,

regardless of any question of damages.” Syl. pt. 3, Lovett v. West Virginia Cent. Gas Co.,

65 W. Va. 739, 65 S.E. 196 (1909). Accord International Union of Operating Eng’rs Local

139 v. Schimel, 863 F.3d 674, 678 n. 2 (7th Cir. 2017) (“It is well accepted that, when the

government has taken property for a private, rather than a public, use, injunctive or

declaratory relief may be appropriate.” (internal quotations and citations omitted)). See also

Syl. pt. 4, Lovett, 65 W. Va. 739, 65 S.E. 196 (“A question of right, and not one of damages,

is raised upon an application for an injunction to prevent the taking of private property for

public uses contrary to the Constitution and laws.”).

              9
             See Jefferson Cty. Bd. of Educ. v. Jefferson Cty. Educ. Ass’n, 183 W. Va. 15,
393 S.E.2d 653 (1990); Syl. pt. 4, State ex rel. Donley v. Baker, 112 W. Va. 263, 164 S.E.
154 (1932).
              10
              See, e.g., State of West Virginia, By & Through McGraw v. Imperial Mktg.,
196 W. Va. 346, 472 S.E.2d 792 (1996).

                                              14

              I acknowledge that Congress has granted the states authority to enact laws

regulating union activities within their borders. See generally 29 U.S.C. § 164(b). However,

such grant of authority does not permit states, including West Virginia, to promulgate

legislation that is patently unconstitutional. Even the United States Supreme Court has

recognized this limitation on states’ power. See Lincoln Fed. Labor Union No. 19129, Am.

Fed’n of Labor v. Northwestern Iron & Metal Co., 335 U.S. 525, 536, 69 S. Ct. 251, 257, 93

L. Ed. 212 (1949) (“[S]tates have power to legislate against what are found to be injurious

practices in their internal commercial and business affairs, so long as their laws do not run

afoul of some specific federal constitutional prohibition, or of some valid federal law.”

(emphasis added; citations omitted)). This Court, however, obviously has not, and, because

the majority has complicitly condoned these legislative efforts to trammel the rights of unions

and union members throughout this State, I respectfully dissent.




                                              15

