Right to Work: Whose Right is It?

By definition: The right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so. The right to work is enshrined in the Universal Declaration of Human Rights and recognized in international human rights law through its inclusion in the International Covenant on Economic, Social and Cultural Rights, where the right to work emphasizes economic, social and cultural development.

In other words, there is enshrined documentation that defines a person right to work at any place of employment without being forced to join a union as a condition of employment.

Here’s the rub: No American worker can be forced to join a union, but most unions push companies to agree to contracts that require all workers, whether they’re in the union or not, to pay dues to the union for negotiating with management. State Right to Work laws make these sorts of contracts illegal, meaning that workers in unionized businesses can benefit from the terms of a union contract without paying union dues. (Under federal law, unions must represent all workers covered by a contract, even if some of those workers are not members of the union and do not pay for the union’s representation.) Over the years several efforts have been made to require unions to represent only their members. The unions want no part of that. Their focus is control.

The Pennsylvania Supreme Court decision of Erdman vs Mitchel case 207 Pa. 207 PA. 79,80 and 91,92 (1903) held that "Under the declaration of rights of the constitution of Pennsylvania, the right of a workman to the free use of his hands is a right which neither the legislature or a trade union can take from him and one which is the bound duty of the courts to protect.

Article 1 Section 1 of Pennsylvania’s Constitution states, in part, "All men are born equally free and independent and have certain inherent and indefeasible rights, among which are possessing property and pursuing their own happiness". Section 26 of that article states, in part, "Neither the Commonwealth nor any political subdivision shall deny to any person the enjoyment of any civil right".

So what happened? How did compulsory unionism trump rights spelled out by the definition of Right to Work and affirmed by the court and defined in the constitution?

In spite of the courts and constitution, the Wagner Act passed in 1935, Section 8(3) allowed for agreements between employers and officers of the union requiring union membership as a condition of employment. The act used the interstate commerce law to trump any state’s rights, which in today’s business environment excludes no state. This raises the Tenth Amendment issue of the US Constitution which is intended to protect states’ rights. Pennsylvania could have and should have acted, based on state’s right to sovereignty, but chose to accede to the federal regulation.

In 1947 an attempt was made to return rights to the individual with the Taft-Hartley Act to correct this, by reaffirming the right to collective bargaining, but also the right to refrain from any collective bargaining activities. Had it stopped there, forced union membership would have ended: however the act stated that such right may be affected by an agreement requiring union membership as a condition of employment.

So today we find ourselves seeking a law that reinstates a right that has been denied by the political system. The fact that elected officials swear to defend and obey both the Pennsylvania and US Constitution is merely reciting words without understanding their meaning.

Several years ago I testified before the PA House L&I committee on House Bill 50, a Right to Work bill. The bill never saw the light of day out of committee. This hearing was followed by the Berks County Patriots hand delivering a resolution to the committee chairman and every committee member in support of HB 50, 51, 52 and 53. Only four of the twenty five members responded. It seems labor unions, including public employee and teacher unions, provide enough financial union dues investment into political campaigns that the "don’t bite the hand that feeds you" axiom comes into play.

Since then, state elected officials have attempted to work around the edges by introducing Paycheck Protection, which states that governing bodies and school boards may not provide a payroll deduction service to collect dues in that it is not the taxpayer financed employee job, but the union itself should collect the dues. However, unions prefer the ease of collecting money from "captive passengers" so long as it is someone else’s job. Other bills have been proposed to raise the threshold for paying the prevailing wage on contracts for $25,000 to $185,000 as adjusted for inflation. There have also been bills introduced to make Project Labor Agreements (PLAs) for publicly funded projects illegal which restricts employment to union members.

Ironically, the non-union craftsmen’s taxes will be financing the project.

Needless to say, none of these bills have passed. Not even during a Republican business-friendly administration. So, for the next three years, possibly even seven, we should not expect any changes. The political climate is not conducive to promote change. Politician’s salaries, per diem, perks and pensions are not worth risking unless the citizens make their demands known. Even then, until a few lose the best part-time job they’ll ever have, the rest will continue with the go along, get along attitude. As long as public employee unions, the best financed lobbyist organization in the state, continue to elect their own representatives, the question remains, who’s the boss?

Pennsylvania’s citizens are paying a significant price for a government being nonresponsive to the economic ills of the state. Pennsylvania is 49th and 50th in states leaving or never locating in our state for business opportunities. Upon graduating from public schools and colleges, this educated workforce often travels to one of the 26 states that have a Right to Work law which are among the top growth states in the nation, while Pennsylvania is in the bottom ten. In fact, by aging population we are the second oldest state next to Florida, the retirement state. While the operational cost of the legislature just to function is the most expensive in the nation, senior citizens and retirees will pay the bill. Do political and public pensions and property taxes ring a bell? Businesses want no part of that dilemma.

What’s the answer? There is no simple solution. Until the representatives and senators feel the pain – the only thing that motivates politicians, predictably – nothing significant will change. Lobbyists have the money. All the activists have are people, and money trumps people. But to do nothing, Pennsylvania will continue on the slippery slope to the economic bottom. With the pension deficit over 60 billion dollars; the most costly government in the nation; poor business climate and an aging population there’s got to be a morning after.

Rod Miller
Berks County Patriots
Director and Legislative Chairman