By 10/31/15 12:01 AM
Connie Euston, of Moon Township, Pa., did not even know an election was happening until the day her ballot arrived in the mail. It was marked: “Urgent: Ballot Enclosed for Pennsylvania Homecare Attendants Election. Deadline approaching: Vote Today!”
Euston takes care of her quadriplegic son, Greg, with help from a state-run program that provides funded subsidies to offset the cost. The ballot asked whether she wanted United Home Care Workers as her state representative. She could check yes or no. The ballot said nothing else regarding the election or United Home Care Workers.
“There was precious little information available,” she told the Washington Examiner.
In fact, the ballot was about whether homecare providers would get what amounted to a union. United Home Care Workers is a joint project of the Service Employees International Union and the American Federation of State, County and Municipal Employees. They were petitioning the state to represent the caregivers.
Euston learned this only after she read a newspaper op-ed on the matter. She voted “no.” Many other providers, who, like Euston, care for family members at home, presumably threw the ballots out, assuming they were junk mail.
Only 2,663 of the state’s estimated 20,000 home care providers were eligible to vote in that election — about 13 percent total — backed United Home Care Workers by the April 23 mail-in deadline. But it still won because only 2,970 voted overall and the majority of votes cast determined the election.
Euston has had two contacts with United Home Care Workers since then. Once when she received an automated call announcing their win and later when it hosted a conference call for the providers. During the latter call, she learned that it planned to press the state for 2 percent of all providers’ subsidy checks as a “representation fee.”
She’s not worried so much about the money, though. “I would take care of my son regardless. My primary concern is with what work rules it would institute and how far they would go to enforce them,” she said. For example, would it have the right to inspect her workplace, i.e., her home?
“We’ve gotten a lot of calls from homecare workers and the people they represent. All of them cannot believe that this is happening. They barely knew about the election,” said David Osborne, general counsel for the Fairness Center, a Pennsylvania-based libertarian nonprofit legal group that is challenging the governor’s executive order.
The center claims that unionizing the caregivers violates state law. A preliminary injunction was granted in May. The case is working its way through court and isn’t expected to be resolved until late this year at the earliest.
A spokesperson for United Home Care Workers did not respond to a request for comment.
A carefully planned-out strategy
The situation in Pennsylvania isn’t unique. Over the past decade, organized labor has run a largely overlooked state-by-state effort to get friendly governors and legislators to have them represent state-subsidized home care providers for the ill and the elderly. Child day care providers were also targeted. In most cases, the subsidies are partly or entirely funded through Medicaid.
The unions did it by getting the states to declare that the providers were public-sector employees because they received state subsidies. This enabled the states to sign contracts with the unions on the providers’ behalf, contracts that obligated the providers to either join a union or at least pay it regular fees.
Between 2003-11, at least 13 governors, all Democrats, in 11 states issued 15 separate executive orders turning different groups of state-subsidized in-home care providers into state employees.
All but four of the orders explicitly declare that the providers are state employees only for the purposes of unionization. Thus, they got no pensions, no liability protection or many of the other benefits available to regular state employees. The other orders either did not address this or had ambiguous language.
Pennsylvania’s vote happened despite the fact that state law explicitly says the caregivers are not government workers and therefore not eligible to unionize.
Democratic Gov. Tom Wolf tried to circumvent that through an executive order that creates a “direct care worker representative,” a position that could be filled by a union.
Wolf’s order also restates that the workers are not state employees and that the “provisions of this executive order shall not be construed or interpreted to create collective bargaining rights.”
In October, the state Supreme Court heard arguments from state Republican lawmakers seeking to join the Fairness Center’s case against Wolf’s order. They argued that the order usurped their legislative powers.
During the oral arguments, the state attorney general argued that the direct care representative was not a union after all. The caregivers would not have the right to strike or get any protection from the state, he noted.
The Keystone State caregivers could therefore have the worst of all possible scenarios: They will be saddled with a union that can demand payment for representing them even though the state is not obligated to bargain with it, and may even be prohibited from doing so. The caregivers will at the same time be prohibited under the order from acting as their own agents in dealing with the state, forcing them to work through the union.
SEIU and AFSCME donated, respectively, $607,000 and $552,000, to Wolf’s 2014 election bid, making them the governor’s seventh and tenth largest donors overall. Wolf even appears on a video on SEIU Pennsylvania State Council’s homepage touting its effort to organize the caregivers. Should United Home Care Workers become the caregivers’ representative, the unions will split an estimated $8 million annually in dues payments.
Wolf’s office did not respond to a request for comment.
SEIU was hobbled by the fact that the providers were commonly classified as private-sector workers. (AP Photo)
The website of Oregon-based SEIU Local 503 states that the national efforts to organize state-subsidized caregivers dates from the mid-1980s, but the first success didn’t come until the late 1990s.
SEIU was hobbled by the fact that the providers were commonly classified as private-sector workers. The typical provider worked under a contract with his care recipient, who was therefore technically the boss. Moreover, the care recipient and the care providers are usually family members, like Euston and her son. So the workers had no common employer to collectively bargain with, making organizing impossible.
But if the care providers were declared to be public-sector workers, then the state was also their employer and unions could organize them by striking a deal with the state. SEIU began pushing friendly lawmakers to reclassify the providers. SEIU’s first big success was in California in 1999, when the state legislature passed a bill to that effect.
Another success followed in Washington state in 2001, when voters approved a ballot initiative titled “Measure 775,” which made no mention of unions or collective bargaining.
What Washington voters were told was: “This measure would create a ‘home care quality authority’ to establish qualifications, standards, accountability, training, referral and employment relations for publicly funded individual providers of in-home care services to elderly and disabled adults. Should this measure be enacted into law?”
Only the reference to “employment relations” even hints at the real purpose of the initiative. Almost 58 percent of Washington voters endorsed what many presumably thought were stricter regulations for in-home care.
The main bankroller for the effort was SEIU, which poured $1 million into the campaign, according to a 2001 Seattle Times report. AFSCME donated $552,000 to Gov. Tom Wolf’s 2014 election bid, making it the governor’s 10th largest donor. (AP Photo)
The real turning point in SEIU’s national effort came in Illinois in 2003. Activists there were frustrated by the fact that the state labor board had ruled in 1985 that the providers were not state employees. The union needed a way to overturn that.
Enter Gov. Rod Blagojevich, a long-time SEIU ally.
The new governor issued an executive order on March 4, 2003, overturning the state labor board ruling, just two months after taking office. One week later, SEIU presented a claim to Illinois that a card check election showed that it had the support of a bare majority of the workers. On March 17, the state certified the union as the workers’ exclusive representative.
It is not clear that a majority really did back SEIU. In a 2013 investigative report by the Washington Examiner, the state was not able to provide any documentation that it ever properly verified the vote.
SEIU’s success in Illinois created a new model for it to follow. Rather than pressuring legislatures and sponsoring ballot initiatives, both costly and difficult, they could simply prod a friendly governor to issue an executive order.
Blagojevich did just that a second time in 2005, issuing an executive order regarding day care providers. They were unionized after a mail-in ballot in which SEIU was backed by only one-quarter of eligible providers. Two-thirds did not even cast ballots.
Iowa Gov. Tom Vilsack also signed an executive order on home care providers in 2005. A deluge then followed: Over the next three years, eight Democratic governors in different states signed 10 executive orders declaring that various groups of state-subsidized providers were state employees only for the purposes of unionization.
In addition to a second order in Iowa, orders were also signed in New Jersey and Wisconsin in 2006. Maryland, New York, Ohio, Oregon and Pennsylvania followed in 2007, twice in the case of the Keystone State.
The rate slowed after that. A second order was signed in Ohio in 2008 and a third in Illinois in 2009, under then-Gov. Pat Quinn, who replaced Blagojevich. Connecticut Gov. Dannel Malloy signed a pair in 2011. Minnesota’s Mark Dayton signed one in 2011. Wolf’s came out in February.
The governors’ orders were often remarkably similar, suggesting that some group provided a draft version of the executive order, which the governors then used as a basis for their own orders. A spokesman for SEIU did not respond to a request for comment.
Similar sections appear in several different orders, sometimes almost word-for-word. Wisconsin Gov. Jim Doyle signed an executive order in 2006 that stated, “[T]here is a need to stabilize the child care workforce and to ensure that licensed and certified family child care centers reach higher quality standards.”
The following year, Maryland Gov. Martin O’Malley signed an executive order that declared, “Whereas, there is a need to stabilize the family child care workforce, which includes both registered providers and providers legally exempt from registration.”
Several of the orders featured a passage on the state’s need to hear from providers that is repeated almost verbatim. Orders also contained similar language on brain development and parental choice.
Not every case resulted in the providers being unionized. The Illinois workers subject to Quinn’s 2009 order rejected collective bargaining after a mail-in ballot was held. This time, homecare workers opposed to unionization mounted a campaign to tell the others in the program that they had the right to vote “no” to any representation, a fact the ballot did not clearly state. The unions lost 2-1 in the election.
Under current Republican Gov. Rick Snyder, an effort to organize caregivers in Michigan has been rolled back. The state has also adopted a Right to Work law.
An even bigger blow was struck in June last year. The U.S. Supreme Court ruled, 5-4, in Harris v. Quinn that the Illinois healthcare providers were not public employees after all. The ruling was officially limited to those particular providers, but SEIU is apparently afraid that it creates a precedent that could be applied in other states. It is acting to prevent further court challenges by backing down when other providers challenge the fair share fee obligation.
SEIU organizations in Minnesota and Massachusetts have said that day care providers in Illinois can also opt out of the service. However, it is not advertising the fact, apparently providing the option only to members who know to request it in writing.
The Pennsylvania case shows they are not giving up though. Subsidized caregivers in states that elect new Democratic governors are likely to see more pushes in the future.
Pamela Harris, a Chicago-area homemaker who takes care of her developmentally disabled son Josh and the lead plaintiff in the Harris v. Quinn, said she still hears regularly through social media from families shocked to find out that by failing to read the fine print in all of the subsidy program forms, they got saddled with a union they didn’t want.
“They’ll say something like, ‘It looks like my husband signed something and now they’re going to be taking union dues out. What do I do?’ That’s typically what happens,” Harris said. “Informed consent does not go along with union membership.”