Pennsylvania home healthcare workers likely will find out late this year whether they will have union dues deducted from their state subsidy checks as a consequence of an April vote in which just 13 percent of them voted in favor of collective bargaining.
Two groups have filed suit to stop the state and a hearing is set for September.
The vote happened despite state law saying the caregivers are not state employees and therefore not eligible to unionize. Democratic Gov. Tom Wolf nevertheless signed an executive order in February creating a "direct care worker representative" position that could be filled by a labor organization and would otherwise act as a union.
The Pennsylvania Homecare Association, a trade group, and the Fairness Center, a libertarian nonprofit, have filed lawsuits on behalf of caregivers seeking to have the executive order voided. A preliminary injunction was granted last month and a panel of state judges will hear the case in September.
"I don't think the vote count was at all reflective of the total population. Even our client, who was clued to what was happening with Gov. Wolf, wasn't sure what the union ballot meant when he got it. 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," said David Osborne, attorney for the Fairness Center.
Under Wolf's executive order, an organization can request a mail-in ballot election to be the caregivers' sole representative by getting just 10 percent to sign a petition. State and federal law require 30 percent for private-sector unions. United Homecare Workers of Pennsylvania, an organization jointly run by the Service Employees International Union and the American Federation of State, County and Municipal Employees, was able to get an election on April 27.
Only 2,663 of the estimated 20,000 home care providers covered by the order — about 13 percent total — voted for the United Homecare Workers to be their representative. But it still won because only 2,970 voted overall and Wolf's order said the representative would be determined by the majority of votes cast. That's also contrary to the state's public-sector union law, which requires an absolute majority to win before it can be recognized.
A representative for United Homecare Workers did not respond to a request for comment.
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. The orders have facilitated unions' efforts to represent home care providers, primarily people who accept state subsidies to offset the costs of taking care of an elderly or disabled family member who would otherwise have to be institutionalized.
The orders have allowed labor organizations, led by SEIU, to become the workers' sole representative with the state and thereby obtain a cut of each provider's state subsidy. In many cases, workers did not even realize they had been unionized until after they saw union membership dues deducted from their membership checks.
It can be big money, too. 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 struck a major blow to the practice last year with its unanimous ruling in the case Harris v. Quinn. The justices said the subsidized Illinois caregivers were not state employees and therefore not eligible for unionization. SEIU has since allowed providers to opt out of membership if they request.
Wolf's order, signed on Feb. 27, 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.
"In our opinion, the executive order was drafted clearly in an effort to avoid prior judicial precedent," said Jim Kutz, attorney for the Pennsylvania Homecare Association. In addition to the Supreme Court ruling, there was an earlier executive order on home care workers and unionization by then-Gov. Ed Rendell, a Democrat, that was subsequently rescinded due to similar legal issues.
Wolf's order also stated that "an employee organization" could obtain a list of all home care workers if just 50 signed their petition and that an election for worker representative would be held if just 10 percent of the caregivers signed a petition. By comparison, under both federal labor law and the Keystone State's own public-sector law, a showing of at least 30 percent support is needed to schedule a union election.
The governor is a close union ally, having received about $2 million in campaign donations from SEIU, AFSCME and affiliates in the 2014 election. A top assistant to Wolf, Mike Brunelle, is a former SEIU officer.
It is not clear exactly what United Homecare Workers would be able to demand from Pennsylvania providers given that it would lack legal standing as an official union, but Kutz notes that the executive order says the topics to be addressed at meetings between the representative and state officials would include "voluntary payroll deductions." This would be included in a "memorandum of understanding" between the two. In other words, the union and and state officials would create a system to facilitate taking membership dues directly out of providers' subsidy checks.
"In the preliminary injunction hearing, I specifically asked the deputy secretary of human services, 'Is it possible that the memorandum could require dues paying [by caregivers] to be certified [for the state subsidy]?'" Kutz said. "His answer was, 'I don't know.' "
Literature sent by United Homecare Workers to providers already asks them to sign up as members and allow dues deduction from their checks. Providers are told the authorization can be revoked at any time but only through written notice to the association. Notably, the literature also states, contrary to the executive order, that they are forming a union.
The caregivers therefore will have the worst of all possible scenarios. They will be saddled with a labor organization that can demand payment for collective bargaining on their behalf even though the state is not obligated to bargain with the association — and may even be prohibited from doing so. The caregivers will at the same time be prohibited from acting as their own agents in dealing with the state since the association will become their sole representative.