New information from an Illinois state agency raises questions about whether the state was right to make home health care workers eligible for unionization, a case now before the Supreme Court: It is not clear that the state ever properly verified the vote that first organized the workers.
In a Dec. 12 letter, the Illinois Department of Central Management Services conceded it could not produce any documentation showing that it had authenticated the union’s 2003 claim that it had the workers’ majority support.
Nor was the state able to provide any after follow-up inquires by the Washington Examiner.
The workers, who mostly care for physically disabled family members in their home and are paid under a state-run Medicaid program, have been under an exclusive representation contract with the Service Employees International Union since 2003.
As part of the contract, the state deducts membership dues directly from the home workers’ paychecks. Illinois residents cannot do this work without at least paying a fee to the union.
On Tuesday, the Supreme Court heard oral arguments in a case about eight workers objecting to the state's making them eligible for unionization. They argued it was a violation of their rights and could result in them being coerced into joining a union.
Labor law experts are closely watching the case since it could upend a 1977 precedent that allowed government employee unions to demand dues payments from nonmembers.
The December CMS letter raises questions about the states’ 2003 decision to grant representation to SEIU Local 880 —now SEIU Healthcare Illinois & Indiana — after a card-check election.
The letter was in response to a Freedom of Information Act request by the conservative Illinois Policy Institute. IPI had demanded, among other information, any records "authenticating the submitted documentation used to show majority interest of personal assistants to be represented by SEIU."
Matthew Sebek, the AG’s public access counselor, responded that "due to the age of the records and files at issue, we are unable to determine with any degree of certainty which records may have" answered IPI's request.
That certainly sounds like they were saying they could not find any documents that authenticated the 2003 vote. CMS spokeswoman Alka Nayyar told the Examiner in an email Friday that interpretation was “not accurate.”
However, the only document Nayyar could point to that showed her agency had authenticated the vote was a March 11, 2003, letter from SEIU itself claiming it had majority support. Furthermore, the evidence the union enclosed in the letter — supposedly cards signed by the individual workers — was “exempt from disclosure under Illinois law” and therefore not available.
Do they have anything else that shows CMS independently verified the vote? Apparently not. “[W]e cannot identify what records may have been used to ‘authenticate’ those [SEIU] enclosures,” she said. In addition, the people who would know are "no longer with the agency."
She added: “The enclosures themselves, however, were clearly used to tally the number of personal assistants who choose to be represented by SEIU.”
The official Illinois letter to SEIU granting the union exclusive bargaining rights states only that the union had presented “evidence” it had won, but made no mention of having verified it.
Paul Kersey, labor policy expert for IPI, said the state was trying to have it both ways: "Which is it? They were responsive and provided us the evidence? Or they could not provide us the evidence because people who once worked for the agency have now moved on to different jobs?"
Important rights were at stake when SEIU applied to represent the people in program, Kersey said. "The state should have taken some basic steps to verify the authenticity of the SEIU's card-check operation, and we haven't seen that evidence yet."
A spokesman for the union did not respond to requests for comment.
Is there reason to doubt that the vote was fair? Yes, the main one being that it happened under the corrupt governorship of Rod Blagojevich. The Democrat is currently serving a 14-year sentence in federal prison on 17 counts of corruption related to his duties as governor.
He was extremely close to SEIU. It had endorsed him twice and was the top overall donor to his 2006 re-election campaign. Allowing unionization of the home health care workers, an SEIU priority, was one of his first actions as governor.
“We cannot have a better ally supporting us. We elected a person who is going to be with us through thick and thin,” Tom Balanoff, head of the union's Illinois state council, said in 2003. Balanoff was later appointed to the Illinois Health Facilities Planning Board.
SEIU was even named in the criminal compliant against Blagojevich. A union official reportedly acted as a go-between for Blagojevich and a person interested in “buying” President Obama's former Senate seat. The Wall Street Journal identified the official as Balanoff.
The vote was extremely close. In the March 11, 2003, letter, SEIU head organizer Keith Kelleher claimed that it had the support of 10,627 of the total 20,475 home health care workers, or about 52 percent.
A bare majority was all SEIU needed. Six days later, Illinois certified the win.
This was not a secret-ballot election. Instead, union organizers knocked on the doors of the workers — usually their private home addresses — in an attempt to get them to sign cards saying they wanted to join.
Workers also have complained that union organizers made misleading statements in an attempt to get them to sign up.
Kelleher’s letter also indicates that Illinois was already collecting dues for home health care workers even before the election. Even assuming that those were voluntary deductions from avowed SEIU members, it shows that the state was going to great lengths to accommodate the union.
“It was deducting union dues on behalf of a union that it hadn’t certified and hadn’t reached a contract with,” Kersey said.
Big money is involved. IPI’s FOIA request also revealed that since 2007, SEIU has received $52 million in dues from the estimated 20,000 home health care workers.
It is likely that some of these dues come from people who do not want be union members, although the exact number is not clear. SEIU Healthcare Illinois & Indiana has about 93,000 members overall according to a 2013 Labor Department filing. But 37,000 of them — more than a third — are “agency fee” payers. Those are people who refused to join their workplace’s union but are still legally obligated to pay if they want to keep their job.
When a mail-in vote was held in 2009 to unionize the 4,500 workers who care for the mentally disabled, the result was quite different. Almost two-thirds voted against any representation, and the two unions vying for it barely got 40 percent combined.