Pennsylvania Senate Republicans were dealt a setback in their effort to prevent Democratic Gov. Tom Wolf from effectively unionizing state-subsidized healthcare workers Tuesday, as the state's supreme court ruled that lawmakers lacked the legal standing to join a lawsuit against Wolf's actions.
The court voted 5-1 to reject the Republicans' bid to sign onto a lawsuit brought by the Pennsylvania Home Care Association, a trade group, against an executive order Wolf issued last year. The order created a "direct care worker representative" for the healthcare workers, a position that could be filled by a labor organization — and that several major ones are vying to fill.
The order was an attempt to circumvent state law, which says the subsidized workers are not state employees and therefore not eligible to be unionized. Most of the subsidy recipients are people taking care of invalid family members at home, typically children or parents. The funds offset the caregivers' expenses and limit the states' need to institutionalize residents.
The Republicans argued that the executive order was a defacto rewrite of state labor law that usurped their legislative role. The state supreme court said Tuesday that those claims were "too indirect and insubstantial."
"Taking the unprecedented step of allowing legislators standing to intervene in, or be a party to, any matter in which it is alleged that government action is inconsistent with existing legislation would entitle legislators to challenge virtually every interpretive executive order or action (or inaction)," wrote Justice Debra Todd.
The justices' ruling is expected to have little impact on the underlying case, which was already underway when the Republicans sought to join it. There is no dispute over Pennsylvania Home Care Association's standing to challenge Wolf's order. The case is expected to be decided later this spring.
Jennifer Kocher, spokeswoman for Senate Majority Leader Jake Corman, R-Huntingdon, said the party was "disappointed" by the court's ruling but vowed to continue to assist the plaintiffs in "any way we can."
"This administration is mirroring the Obama administration. They're enacting policy through executive orders rather than going to the legislature as they should," Kocher said.
Wolf spokesman Jeff Sheridan applauded the justices' decision. "We look forward to continuing to argue the case on its merits," he told the Associated Press, arguing that the executive order would "ensure that home care workers have a voice in shaping the future of the industry and that seniors have choices about where to receive care."
The order, signed by Wolf in February 2015, explicitly states that the home care providers are not state employees and do not have collective bargaining rights.
However, it creates a position of "direct care worker representative" that will "meet and confer" with state officials on issues such as "wage ranges, healthcare benefits, retirement benefits and paid time off." In other words, everything a union ordinarily does on behalf of workers, except that the state would not be legally obligated to negotiate with it as it would with a traditional union.
United Home Care Workers of Pennsylvania, an organization jointly run by the Service Employees International Union and the American Federation of State, County and Municipal Employees, petitioned to represent the workers and was able to get an election last April.
The governor is a close union ally, having received about $2 million in campaign donations from SEIU, AFSCME and their affiliates in the 2014 election. A top assistant to Wolf, Mike Brunelle, is a former SEIU officer.
Only 2,663 of the state's estimated 20,000 home care providers, about 13 percent total, voted to back United Home Care Workers' bid. But the union still won because only 2,970 workers voted overall and the election was based on the majority of votes cast. United Home Care Workers subsequently announced that it intended to push the state to give it 2 percent of all the healthcare workers' subsidy checks as a "representation fee."
Critics of the order argue that few of the workers even knew an election was happening and the state and the unions worked together to steamroll them. "We've gotten numerous calls from people after we filed our case who had no idea a union was trying to step in. They obviously didn't even vote," David Osborne, attorney for the Fairness Center, a libertarian nonprofit pursuing a separate lawsuit against the order, told the Washington Examiner last year.
Wolf's executive order is the latest in a series from union-allied Democratic governors in states including Illinois, New York and Ohio over the last decade that facilitated unions' efforts to represent home care providers.
Those efforts were dealt a major setback in 2014 when the U.S. Supreme Court ruled, 5-4, in Harris v. Quinn that Illinois healthcare providers were not public employees and therefore not eligible to be unionized. Critics of Wolf's order argue its creation of a technically non-union "worker representative" is partly an attempt to avoid a legal challenge under Harris.