Court strikes down Pennsylvania Governor’s union give away

By Olivia Grady

On February 27, 2015, Pennsylvania Governor Thomas Wolf issued Executive Order No. 2015-05, creating a new position to represent the state’s homecare workers.

Homecare workers are individuals who care for people with disabilities, usually loved ones, in their homes. The state calls them direct care workers or DCWs, and the governor’s new position was called Direct Care Worker Representative.

The governor envisioned that the Representative would hold meetings monthly with the Secretary and Deputy Secretary of Human Services to discuss current homecare worker issues, such as terms and conditions of employment. Any “mutual understandings” between the state and the Designated Representative during the meetings would be written down and treated as Department of Human Services policy.

The governor’s Order also mandated a process by which the Designated Representative was chosen. The Department of Human Services was required to provide a list of names and addresses of all DCWs within the previous three months to an employee organization (i.e. union) who wanted to become Designated Representative.

If a union wanted to be the Representative, it must prove that 10 percent of DCWs support it to trigger an election. If the majority of voters vote for it, it becomes Designated Representative.

About three months after the Order was issued, the United Home Care Workers of Pennsylvania won an election and was certified as the Representative. However, turnout was low. Of the 20,000 DCWs in the state, only 2,663 voted for the union. United Home Care Workers, according to its website, is:

…a joint effort by the American Federation of State, County and Municipal Employees (AFSCME) and the Service Employees International Union (SEIU) to unite thousands of home care workers for better wages and benefits and quality home care.

(The SEIU has unionized homecare workers with the help of the government in other states before, like in Minnesota.)

In response to the Order, a group of homecare workers and their patients, as well as representatives from the homecare agencies, sued the Governor challenging its validity.

The petitioners argued that Wolf exceeded his authority and that his Order interfered with the patient-DCW relationship. And, that the order violated the Pennsylvania Labor Relations Act (PLRA) and the Public Employe Relations Act (PERA).

The state’s defense was that no authority was exceeded, that the Order was merely a means to gather information about the homecare worker program. The state also claimed that the petitioners didn’t have standing to bring the suit because they hadn’t been harmed by the Executive Order.

The Commonwealth Court of Pennsylvania disagreed, and on September 22, 2016, decided in favor of the homecare workers. The Court found that the state had no employer-employee relationship with DCWs. So, even though the meetings dealt with terms of employment, the state was included and not the homecare workers.

The judges also ruled that the petitioners clearly had standing:

Jessica Markham, as a DCW whose interests are to be served by a Designated Representative, has a direct interest in protecting herself from an invasion of privacy in her home through mailings for the purpose of solicitation, and from selection of a representative based on a bare majority vote.

The Court further concluded that the petitioners’ harm wasn’t speculative because the Order interfered with the relationship between DCWs and participants. The Order excluded participants from the discussion between the state and the Designated Representative over employment, and the Designated Representative represented the participants.

Having determined that the homecare workers had grounds to sue, the Court turned its attention to the validity of the Executive Order. The Court already had determined the three types of executive orders allowed: Proclamations for a ceremonial purpose; directives to subordinate officials for the execution of the duties of the Executive Branch of government; and implementation of a statute or other law.

The state claimed that Wolf’s Executive Order was a directive to subordinate officials, but the Court rejected this. While part of the Order might be considered a directive, Sections 3 and 4 were not directives because they mandated actions by the Secretary, Deputy Secretary and third parties, creating rights and duties. It also established a process, which involved non-subordinates (DCWs, AAA, etc.).

Further, the Court found that these two sections changed the relationship between DCWs and patients by adding the Department and Designated Representative to that relationship. Finally, the Court rejected the state’s characterization of this new relationship as information gathering because it isn’t mentioned in the Order.

The Court also found that the Order clearly violated state labor law (specifically the PLRA and PERA) because the labor laws exclude homecare workers:

By excluding DCWs from the definition of employees in the PLRA, the General Assembly chose to deny DCWs the ability to collectively bargain. By issuing the Executive Order, and encouraging DCWs’ to organize collectively, Governor Wolf is essentially usurping that legislative power.

Considering the order “de facto legislation,” the Court thus concluded that Governor Wolf exceeded his authority. The Court thankfully saw the Order for what it was: a sneaky attempt by the governor to unionize more workers and fill the coffers of his campaign contributors, the unions.