Right to Work: Is it a Constitutional Right?

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This past August 16th, the PA House Labor and Industry Committee held hearings on the issue of Right to Work. The question was, should a person be required to belong to or pay a fee to a union to gain or retain employment.

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".

The 1903 Pennsylvania Supreme Court decision of Erdman vs. Mitchell, 207 Pa. 79, 80 and 91, 92 (1903) held that "Under the declaration of rights of the constitution of Pennsylvania, the rights 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 it is the bounded duty of the courts to protect."
Despite this finding, the Wagner Act, passed in 1935, – Section 8(3) allowed for agreements’ between employers and officers of a union requiring union membership ‘as a condition of employment’ if the union was certified or recognized as the employees’ ‘exclusive’ bargaining agent on matters of pay, benefits, and work rules. The act states that it generally applies to companies involved in interstate commerce, and for all practical purposes, in today’s business environment that excludes no one. This clearly raises the issue of states’ sovereignty as outlined in the Tenth Amendment of the US Constitution, and of workers’ rights as defined in Pennsylvania’s Constitution.

With a stroke of the pen, workers rights seemed to vanish – another example of the ongoing nationalization of states’ sovereignty. Instead of objecting to or even nullifying the Wagner Act, Pennsylvania’s Legislature acceded to this federal legislation.
The Wagner Act was followed in 1947 by the Taft-Hartley Act, which granted employees the right of self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and also the right to refrain from any and all such activities.

Had it ended there, forced union membership would have been prohibited. But the Taft-Hartley Act continued, stating "……..except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title."

Today we find ourselves seeking a law that reinstates a right that should never have been denied to individuals or states in the first place. Every one of our state senators and Representatives takes an oath to support, obey and defend the Constitution of the Commonwealth of Pennsylvania, so workers and politicians should all be on the same side of the issue, but are they?

Ironically, there has never been a Right to Work bill put to a vote before the PA House or Senate. The most recent Right to Work bill, HB 50, sponsored by Representative Daryl Metcalfe appears to be headed for the same circular file or buried in committee.
And to be sure, I was the only person who testified on HB 50 before the House L&I Committee who actually quoted the constitution. I posed the question, with regard to workers’ constitutional rights, why should hearings and bills on this issue even be necessary?

The lack of response or questions from the committee members spoke volumes to the effect that they didn’t know they were violating their oath of office or really didn’t care, as both sides of the argument are usually focused on the economics of the issue. It would appear that our legislators’ concern is for their reelection, and forced union dues fill a lot of campaign war chests.

The Berks County Patriots hand carried a resolution to the committee chairman and every L&I committee member in support of HB 50, 51, 52, 53 which resolution was unanimously approved at our general membership meeting, attended by over 400 Patriots. The resolution was accompanied by a cover letter and a self addressed and stamped postcard simply asking them to indicate their position on the four bills. Although it would have required only a moment of their time, it was disappointing to only have four of the twenty five returned to us. It appears that we’ve lost control of our government. Unless we are the financiers to their reelection, we simply don’t matter.

On a personal level, in 1968, I was employed as a contract employee by an engineering firm when the employees voted to be exclusively represented by the UAW. That union gave the company an ultimatum. Either I was to be fired, or I had to become a union member or there would be a strike. Having no immediate job prospects, I joined the UAW under protest. I signed the membership card specifying it was signed under protest, and sent letters to Republican Governor Shafer, and Republican Senators Schweiker and Scott. Their responses were all pretty much the same: telling me to get over it, in that Pennsylvania is not a Right to Work state, and neither party really wanted to invest political capital defending individual rights.

I recall during that brief membership the UAW organized a bus caravan to Philadelphia to rally for presidential candidate Eugene McCarthy. My compulsory union dues went to support a candidate I was strongly opposed to! There is now a loosely enforced Beck Law, which prohibits unions from using dues for political purposes without the permission of the member– a law, which would never have been necessary had there been a national Right to Work law. And ironically, the company that I left — Leeds Northrop — is no longer in business. Was that a union success story?

I subsequently spent 37 years as a volunteer director of the PA Right to Work Committee, retiring from the board in 2005 as a vice president. During those years I’ve heard every egregious story that can be told regarding compulsory membership in a union as violations of individual rights. And, at the risk of being redundant, in all those years, I’ve seen cosponsors of Right to Work legislation come and go, but never, irrespective of which party had control of all three branches, has there ever been a Right to Work bill brought to the floor for an up or down vote.

I’ve referenced both individual and states’ rights as provided by the US and Pennsylvania Constitutions. However, the consequences of Pennsylvania’s failure to join over twenty other states in passing a Right to Work law are evident. Economically, the top ten states are Right to Work states and Pennsylvania, along with nine other non-right-to-work states are the bottom ten of all fifty states.

We are overdue for learning who believes the workers of Pennsylvania have a constitutional right to seek employment and provide for one’s family without being coerced to belong to or support a private organization such as a union.

Finally, I ask, do workers’ rights trump union demands?

A Right to Work law is the right thing to do. It’s the moral thing to do. It’s the constitutional thing to do.

Rodney Miller
Berks County Patriots, Vice Chairman