A five-judge panel of the Pennsylvania Commonwealth Court openly mocked an executive order by Democratic Gov. Tom Wolf that sought to create a union-like entity to represent state-subsidized home healthcare workers.
During a June 8 hearing on the order's constitutionality, the judges said the governor's claim the order did not create a de facto union lacked credibility.
Kenneth Joel, attorney for the governor and Pennsylvania Human Service Department, had barely begun his defense when Judge Patricia McCullough cut him off.
"Counsel, there's an old saying: If it looks like a duck and it walks like a duck, it's a duck," McCullough said. "This is astonishingly similar to a prior attempt by a previous governor in 2010 to pass the same kind of executive order that was enjoined by this court."
Footage of the June 8 hearing was posted online by the Fairness Center, a Pennsylvania libertarian nonprofit legal group that is challenging the order. (Note: The video has since been removed. The footage was originally from the nonprofit Pennsylvania Cable Network.)
Wolf's executive order, issued last year, created a "direct care worker representative" for the healthcare workers, who accept state subsidies to help take care of people, a position that could be filled by a union. A group called United Home Care Workers, a joint entity created by the the American Federation of State, County and Municipal Employees and the Service Employees International Union, won an election last year to be the representative, though only 13 percent of workers eligible to vote actually did.
The Fairness Center and the Pennsylvania Home Care Association, a business trade group, filed suit to block Wolf's executive order. The governor's administration has defended the order by arguing that it creates no union rights. "This is not exclusive bargaining that leads to an enforceable contract or agreement, and that's the difference," Joel told the judges.
That baffled Judge Kevin Brobson, who noted that the United Home Care Workers appeared to be representing itself as a union. "There's language in some of the union materials that suggests — actually, that explicitly states — 'We can now unionize in the commonwealth of Pennsylvania. Please join our union.' Has the governor told them that they are mischaracterizing his executive order?" he asked.
Joel said that he was "unaware" if the governor had told them that. Brobson followed up by asking if the union-generated materials were wrong in how they characterized the executive order. Joel declined to directly answer, prompting Brobson to ask the question four additional times before Joel conceded that the unions were wrong.
The judges expressed skepticism toward some of the claims by those challenging Wolf's order, too. "To accept your argument, doesn't the court have to conclude that this is, in effect, mandatory collective bargaining?" Judge Mary Leavitt asked Pennsylvania Homecare Association attorney James Kutz. He responded that the court didn't need to go that far since it was "de facto collective bargaining."
"The primary argument of the attorney general on behalf the governor is that this order doesn't do anything. Well, if it didn't do anything then why enact it, why fight so hard to defend it?" Kutz asked.
Unions have long sought to organize subsidized home careworkers in Pennsylvania and in other states across the country but often have been stymied by the workers' unusual employment status: They are people who are paid with public funds but actually contract their services with the care recipients, who are typically invalid family members. Traditionally, unions require a common employer and common workplace, neither of which applies to home healthcare workers.
To get around the problem, labor organizations have prodded friendly governors and state legislatures to declare that the homecare workers are state employees, which would make them eligible to be unionized. In 2010, the Keystone State's then-governor, Democrat Ed Rendell, signed such an order to give homecare workers "the ability to form a union to improve wages, gain access to health benefits, and make other improvements." The order was rescinded after the commonwealth court noted that state law explicitly said the workers were not state employees and therefore not eligible to form a union.
Wolf's executive order creating the direct care representative re-states that the workers are not state employees and adds that the "provisions of this executive order shall not be construed or interpreted to create collective bargaining rights." But the representative organization would otherwise function as a union, being empowered as the workers' representative with the state. After United Home Care Workers won the representation election, it told homecare workers in a conference call that it intended to press the state for 2 percent of all providers' subsidy checks as a "representation fee."
The fees can be big money. SEIU had been receiving $10 million annually in dues from Illinois providers after it organized them under a 2003 executive order by then-Gov. Rod Blagojevich. The Supreme Court ruled the workers weren't state employees in the 2014 case Harris vs. Quinn. Wolf's order was crafted in part to avoid running afoul of that ruling, critics argue.
Wolf 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 the governor, Mike Brunelle, is a former SEIU officer.