State Supreme Court justices heard arguments Tuesday on a petition by Attorney General Patrick Morrisey to overturn a Kanawha Circuit Court injunction blocking enforcement of the state's right-to-work law, but repeatedly questioned why the issue was before them.
"Has there been a motion filed saying, 'Judge, rule on the case?' " Justice Menis Ketchum asked deputy solicitor general Thomas Johnson Jr., representing Morrisey. "Have you all done anything since the preliminary injunction to get the court to rule on the merits?"
In August 2016, Kanawha Circuit Judge Jennifer Bailey issued a preliminary injunction blocking enforcement of the state's new right-to-work law, saying that until legal challenges over the new law can be resolved, enforcement of the law could cause irreparable harm to unions and union members - including the possibility of union officials facing criminal charges and civil penalties.
Since then, the case filed by the West Virginia AFL-CIO and other unions challenging the legality of the right-to-work law has faced delays, including a rejected attempt by a representative of a national right-to-work organization to be made a party to the suit.
Justice Margaret Workman on Tuesday suggested the attorney general's office is seeking a "short cut" by petitioning the Supreme Court before the circuit court has ruled on the case challenging the legality of the new law.
"You want to come to us to get the answers when you really should start at the circuit court level," she said.
In the petition to vacate the preliminary injunction, the attorney general contends that the ongoing delay in enforcing the law is sowing confusion for businesses and workers, and is causing irreparable harm to the state.
"Delay in this law's enforcement will impair the state's vital interest in protecting its citizens from compelled association," the petition states.
Johnson on Tuesday argued that Bailey had erred in granting the preliminary injunction, saying the unions had failed to prove irreparable harm if the law went into effect, and also failed to establish a reasonable likelihood that their legal challenge will prevail, since right to work laws have been upheld in other states.
Attorneys for the unions argue that the law amounts to an illegal taking of union resources, since under right to work and federal labor law, unions would be compelled to represent employees who opt not to pay union dues.
"Workers can ask, why should I pay for services I can get for free under the labor law?" attorney Robert Bastress, taking the position of what he called free riders in union shops.
"This is what this case is all about, the ability to avoid having to abide free riders," Bastress, representing the unions, told the justices.
Justice Beth Walker questioned whether the law allows unions to represent only their members in contract negotiations.
Bastress said that would negate the unions' ability to act as exclusive collective bargaining representatives in contract negotiations.
"Without that hammer, unions can't bring employers to the table at all," he said.
Bastress said the right to work law was clearly intended to diminish the influence of labor unions in the state, citing a study prepared for the state Senate projecting a 20 percent decline in union membership under the law.
However, Ketchum noted, "We can't decide here whether or not it's a fair law."
The right-to-work law was the first bill passed by the Legislature in the 2016 regular session. Then-Gov. Earl Ray Tomblin vetoed the bill, but both houses quickly overrode the veto, allowing it to become law effective July 1, 2016.
Reach Phil Kabler at philk@wvgazettemail.com, 304-348-1220, or follow @PhilKabler on Twitter.