The measure, identical to an Illinois constitutional amendment that Prairie State voters narrowly ratified last autumn, would prevent adoption of a “right-to-work” law saying nonunion workers can’t be forced to pay union dues. More broadly, the amendment would counteract statutes that check the power of labor organizations and, opponents fear, give public-sector union contracts primacy over state law.
“No law shall be passed that interferes with, negates or diminishes the right of employees to organize and bargain collectively over their wages, hours and other terms and conditions of employment and work place safety,” the proposed amendment reads.
State Representative Elizabeth Fiedler (D-Philadelphia), the avowed socialist who authored the bill, claimed in committee testimony that employers routinely violate workers’ rights to organize and collectively bargain. She said some employers hold seminars and “bombard” employees with literature meant to “scare” workers out of unionizing.
“This constitutional amendment will help prevent future attacks on workers and their rights,” Fiedler said. “And, with this constitutional amendment, we can prevent future laws that seek to silence workers. Strong unions benefit everyone and the decline of unions has played a big role in rising inequality and wage stagnation.”
The representative insisted she and her cosponsors are pursuing their legislation in the name of “fairness.” Her minute-and-a-half-long speech came in addition to 43 minutes of testimony from supportive union officials and allies at a hearing last week. That day, the panel took only 76 seconds of testimony from an amendment opponent, Commonwealth Foundation senior fellow David R. Osborne.
At Monday’s voting meeting, Representative Ryan Mackenzie (R-Macungie) proposed amending the bill with a provision protecting public-sector workers’ right to refuse to pay union dues. In the 2018 Janus v. AFSCME decision, the U.S. Supreme Court recognized that right, though opponents of the Fiedler legislation anticipate it could jeopardize Janus’s enforcement. Mackenzie’s amendment failed 12-9.
Many policymakers worry numerous state laws that protect workers from unions’ heavy-handedness could be nullified if the Fiedler amendment is adopted. Representative Ann Flood (R-Pen Argyl) pointed to Act 59 of 2015. The law eliminated statutory provisions preventing union representatives from prosecution for “harassment, stalking, and threatening to use a weapon of mass destruction” if those actions took place in the course of a labor dispute.
“This was a good change, because no one should be allowed to engage in those behaviors toward another person,” she said.
Flood then asked the bill’s supporters whether the proposal would impact Act 59 and resultantly allow stalking and harassment.
“Based on the hypothetical question, it would depend upon how it is litigated in court,” committee executive director Ryan Beaston answered. “This amendment doesn’t change state law as currently exists. You know, it does nothing to supersede it automatically. This would require litigation, so we can’t say.”
Representative Dawn Keefer (R-Dillsburg) inquired about what effect the Fiedler proposal could have on union members’ right to resign their membership at any time, a prerogative recognized by the U.S. Supreme Court in the 1985 Pattern Makers v. National Labor Relations Board case. Keefer said that ruling conflicts with a clause in the amendment barring prohibition of contracts “requiring membership in an organization as a condition of employment.”
Representative Jim Haddock (D-Hughestown) replied by asserting that the amendment could only affect laws contemplated for passage in the future.
“The laws that are currently in place stay in place,” he said. “I think that’s pretty plain language in this resolution. So we are not… granting these wild rights to people who want to organize.”
Osborne, an attorney who has represented public employees in labor cases, told The Pennsylvania Daily Star that no one can expect a constitutional amendment to merely affect legislation passed after its enactment.
“Anytime you add a constitutional provision that means anything, it calls into question any state law passed at any point,” he said. “All it takes is a lawsuit… and a request to a judge to declare that the statute is unconstitutional under the newly amended Constitution. So they’re just flat wrong to say that this can only apply to the future law.”
He said the Fiedler measure would end up affecting state policy in myriad ways, perhaps beyond the intent of the bill’s sponsors.
“What often happens with constitutional amendments is that you don’t really find out what they’re all about until several legislative sessions have already gone by and then nobody remembers why they voted for it,” he explained. “I mean it’s all in the rearview. And all you can do is deal with the language that’s presented in the amendment and the language of this amendment is horrible; it makes no sense.”
Representative Barbara Gleim (R-Carlisle) pointed out that the Illinois Policy Institute (IPI) conducted a review of its state’s constitutional amendment and found that it threatens 350 preexisting state laws. She asked committee Chair Jason Dawkins (D-Philadelphia) if any similar study has been conducted regarding the proposal in Pennsylvania and the chair responded he is not aware of one.
Because the amendment would restrict lawmakers from limiting provisions of a union contract, Gleim said it could result in nullification of laws requiring background checks of employees that work with children, a concern IPI mentioned concerning the Illinois measure. She asked Dawkins whether he can guarantee that a Pennsylvania amendment would not have that effect.
“I don’t believe we have ever guaranteed on either side of this aisle anything in terms of unintended consequences,” he responded. “I don’t believe we’re going to start today.”
Representative David Rowe (R-Middleburg) said Democrats’ inability to clarify the legislation’s practical outcome should give lawmakers pause.
“We don’t know what laws are going to be impacted,” he said. “We haven’t done any of the work asking the attorney general or a policy group or somebody to do any of the homework on this bill and yet we are railroading it through with a very truncated hearing on the subject.”
In order to become part of the state Constitution, the bill must pass the General Assembly in two consecutive legislative sessions and then appear on the ballot for voters to approve or reject. While it could pass the Democrat-controlled state House, it could face strong resistance in the Republican-run Senate.
Mackenzie characterized the push for the bill as a messaging ploy by Democrats since the bill appears to have little chance of passage this session. He said that if something like it does become law in the future, it would only hurt Pennsylvania’s economy.
“The only state that I’m actually aware of that has taken something up that is similar to this is Illinois…,” he said. “Illinois is not a state that we should be following economically or messaging-wise. People are fleeing that state in droves and why we would want to go down the path of Illinois is beyond me.”
His colleague Joe D’Orsie (R-York) offered data to bear that out, noting that the Prairie State lost 105,000 workers and $10.9 billion in adjusted gross income in 2021.
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Bradley Vasoli is managing editor of The Pennsylvania Daily Star. Follow Brad on Twitter at @BVasoli. Email tips to [email protected].
Photo “Pennsylvania Union Protest” by Joe Piette. CC BY-NC-SA 2.0.