‘Right to Organize’ Amendment Violates Constitution


Originally published in RealClear Pennsylvania

By Danielle Acker Susanj

This month, Pennsylvania House lawmakers approved legislation, House Bill 950, that purports to add a new fundamental right to the state’s constitution: the right to organize. In practice, however, the measure would try to rob the commonwealth’s public-sector employees of rights they already possess under the First Amendment.

Though the new legislation is presented as applying to any Pennsylvania employee, many employees in the private sector already have organizing rights governed by the federal National Labor Relations Act. The proposed law would change little for them.

But the more than 300,000 employees who work for Pennsylvania governments — including teachers, police officers, municipal employees, and others — could be forced to sacrifice their rights in order to keep their jobs.

Just two sentences long, HB 950 could have far-reaching consequences on Pennsylvania law. Beyond establishing a constitutional right to organize, it would provide constitutional protections to agreements between government employers and unions that “requir[e] membership in an organization as a condition of employment.” 

As a lawyer with the Fairness Center, a public interest law firm that represents those hurt by public-sector union officials, I can confidently say that should this state constitutional amendment be adopted, our clients would be forced to sue to defend their rights.

Public employees have First Amendment rights to freedom of speech and association. Fundamental to the freedom to associate is the ability to choose whether to appear on the membership rolls of an organization or not. Freedom of speech means the right not to speak through or fund the speech of an organization — especially when it takes positions with which one may disagree.

These rights are what led the U.S. Supreme Court, in 2018, to rule that public-sector unions cannot force employees to fund them. And for decades prior to this decision and up to the present day, legal precedent has recognized that these rights also mean government employers and unions cannot force employees to be card-carrying, dues-paying union members.

Indeed, twenty years ago, the Third Circuit Court of Appeals declared in a lawsuit against the Pennsylvania State Education Association, the state’s largest teachers’ union, that “[t]he First Amendment affords public-sector employees the freedom not to associate with a labor organization.”

In 2019, our client John Kabler, a Pennsylvania liquor store clerk, sued his union, the United Food and Commercial Workers, 1776 KS, over its union membership requirement. There, federal judge for the Middle District of Pennsylvania Sylvia Rambo wrote that Supreme Court precedent “clearly would prohibit an employer from forcing non-union members to join a union as a precondition to their accepting public employment.”

Our clients have also filed lawsuits against some of the state’s largest public-sector unions over collective bargaining agreement provisions that limited when employees could resign their union memberships. After this litigation, union officials removed membership resignation restrictions from these contracts — implicitly conceding that they were unenforceable.

Meanwhile, in an ongoing case before the Third Circuit that combines one class action and two individual lawsuits, our clients are defending themselves against union officials who forced them to pay union dues after they resigned their memberships.

Just last month, both defendants in this case — the Service Employees International Union, Local 668 and the American Federation of State, County and Municipal Employees, Council 13 — signed a brief acknowledging that public employees have “the constitutional right to decline union membership.” These union officials themselves seem to realize that the U.S. Constitution prohibits forced union membership.

But Ken Mash, president of the union that represents faculty and coaches in Pennsylvania’s publicly owned universities, seems to think that the amendment doesn’t mean what it says.

Last month, Mash testified in favor of HB 950 before the House Labor and Industry Committee, writing, “people will still have a choice about whether they want to join a union.” He and other public-sector union officials remain a driving force behind the proposed amendment to Pennsylvania’s constitution.

Let there be no confusion: federal judges have repeatedly looked to the First Amendment to uphold public employees’ right to decline union membership. No one disputes that the U.S. Constitution overrides state law — including state constitutions. Yet public employees may once again need to go to the federal courts to prevent this state constitutional amendment, if passed, from violating their rights.

The author’s viewpoints are their own and do not necessarily represent those of the Fairness Center.