In Minnesota, the Service Employees International Union might qualify as a separate branch of government. Governor Mark Dayton, for one, wouldn’t object. Three years ago the State of Minnesota enacted a law opening the door to unionizing private home care providers for the disabled. The law soon seemed destined for oblivion. In June 2014, the U.S. Supreme Court, in Harris v. Quinn, ruled that an Illinois law forcing home care workers to pay union dues violated their free speech rights. That these employees received a portion of their incomes from state Medicaid funds, said the Court, does not subject them to a public-sector labor agreement. Yet the Minnesota law’s supporters have managed to sidestep that ruling, enriching union coffers in the process.
The Service Employees gambit in Minnesota goes back nearly five years. In November 2011, Governor Dayton, a Democrat, issued an executive order authorizing union elections for private child care providers. The initiative soon hit a roadblock. In April 2012, Ramsey County District Court Judge Dale Lindman struck down the governor’s order as unconstitutional. The executive order wasn’t popular either. Personal care providers voted against unionization by an almost three-to-one margin. And in the legislature, Republican State Rep. Kathy Lohmer sponsored a bill to prevent unions from deducting dues payments from home-based child care providers paid in part or in full with state funds. Lawmakers passed the measure, but Gov. Dayton vetoed it. Rep. Lohmer responded this way: “Simply put, the governor could attempt to exert his authority in other ways over the next two years he is in office, and my legislation would have created protections should that happen. Looking ahead, Minnesotans need to send a clear, resounding message that we need to protect our private business owners from a union takeover.”
Governor Dayton, an heir to the Target discount store fortune, did send a clear, resounding message – on behalf of organized labor. He pushed for legislation, the Minnesota Public Employee Labor Relations Act, or PERLA (S.F. 778), a section of which would subject home care providers subsidized under the state’s Child Care Assistance Program to collective bargaining agreements. In May 2013, lawmakers gave Dayton what he wanted. Two years later, in May 2015, the law delivered a contract for the Service Employees International Union. The agreement stated: “(T)he State recognizes the union as the exclusive representative under the Minnesota Public Employee Labor Relations Act (PERLA).” The law, which took effect that July 1, defined a public employee as “any person appointed or employed by a public employer.” A family member or friend providing home care presumably would not have to worry about being classified as a public employee. A Supreme Court ruling in 2014 in an Illinois case suggested as much.
Back in June 2009, Illinois Democratic Governor Patrick Quinn issued an executive order reclassifying about 4,500 home care workers as “state employees” if at least some of their income came from state Medicaid funds. The order was in addition to one issued in March 2003 by Quinn’s predecessor, Rod Blagojevich, designating a Service Employees International Union affiliate as the exclusive bargaining agent of care providers. The SEIU was a powerful ally of Gov. Blagojevich, having contributed about $800,000 to his victorious election campaign the previous year. The legislature codified the order several months later. The State of Illinois and the Chicago-based SEIU Local 880 (now known as SEIU Healthcare Illinois Indiana), established an agreement mandating that the State deduct dues from care provider wages and route them to the union. This arrangement, based on the premise that all workers must pay their “fair share,” took in about $750 a year in agency fees per nonmember worker. As fate would have it, Blagojevich was arrested in December 2008 following a lengthy federal probe of corruption in Illinois. He would be removed from office the following month by the legislature and eventually convicted by a federal jury in 2011 on multiple charges.
Governor Quinn may have been clean, but he was committed to expanding what Blagojevich had set in motion. His 2009 executive order gave unions the authority to request elections or conduct card checks as a means of winning representation. Initially, the desired results didn’t materialize. That October, two unions, one affiliated with SEIU and the other with AFSCME, held a National Labor Relations Board-supervised representation election. The tally revealed bad news for each: Potentially affected workers voted to remain nonunion. Union organizers vowed to continue their efforts. But several personal care assistants decided to fight back. Eight caregivers, led by Pamela Harris, a Chicago-area housewife and primary caregiver for her disabled adult son, in April 2010 filed suit in federal court against the State of Illinois, the SEIU and AFSCME to invalidate the Blagojevich and Quinn executive orders. These orders, said the plaintiffs, violated their freedom of speech. Despite various setbacks chronicled at length by Union Corruption Update, the U.S. Supreme Court granted the case standing in October 2013. And on June 30, 2014, the High Court ruled 5-4 in Harris v. Quinn that private-sector home health care workers cannot be compelled to pay agency fees to a public-sector union just because they had received public funds. Though the Court stopped short of overturning Abood v. Detroit Board of Education, the 1977 ruling that established the constitutionality of the union shop for public employees, it was a triumph for the Right to Work principle all the same.
In the aftermath of Harris v. Quinn, why is the State of Minnesota classifying private-sector home care providers as public employees simply because they receive public monies? The reason is that the decision left unanswered the issue of whether a state may mandate an exclusive bargaining representative for such workers. Organized labor and supportive officials such as Governor Dayton, thus are claiming the authority to make that call as a matter of social justice. Immediately following Harris v. Quinn, Dayton lamented: “The court has voted to roll back the cause of civil rights in America.” The court, of course, did nothing of the sort; it merely defended the right of workers to provide or withhold support to a union as they see fit. But the courts have proven sympathetic to his position. In the wake of the 2013 enactment, but several months before the ruling in Harris v. Quinn, a dozen Minnesota home care providers, led by Rochester, Minn.-based care provider Jennifer Parrish, filed suit in U.S. District Court against Gov. Dayton and AFSCME District Council 5. The new law, argued the plaintiffs in Parrish v. Dayton, violated their First Amendment rights. Despite the similarity between the two cases, the court dismissed Parrish without prejudice. The plaintiffs appealed. On July 31, 2014, one month after the High Court announcement in Harris, the U.S. Court of Appeals, Eighth Circuit, announced it would not grant certiorari. The three-judge panel explained:
Here, an election is not currently scheduled. No organization is trying to obtain certification through a card check program. No organization has filed a petition for an election. Plaintiffs have not shown any significant practical harm from awaiting a petition. The election of an exclusive representative is not certainly impending, and may not occur at all…Plaintiffs’ claims are not ripe for review.
By avoiding the issue of whether imposing exclusive representation upon dissenting workers is constitutional, the circuit court cleared the path for union organizing. And a Service Employees affiliate, SEIU Healthcare Minnesota, was prepared to go the distance. The union petitioned the NLRB to oversee a representation election in hopes of bringing up to 27,000 personal care assistants throughout the state, whether or not in the public sector, under a collective bargaining contract. In an official statement, SEIU Healthcare Minnesota President Jamie Gulley had said on June 30, 2014, immediately following the Harris v. Quinn decision: “Home care workers in Minnesota have made clear to our union that no court case will stop them from their efforts to form a union with us to improve home care for the people that they serve. Their work is critical, and we know they will continue to fight alongside the seniors and people with disabilities they serve to improve home care for Minnesota families.” Fairly brimming with arrogance, the union effectively was announcing: We will defy the Supreme Court if that’s what it takes to boost SEIU membership. The election eventually happened. And the union won by roughly 3,500 to 2,300, thanks to some underhanded tactics. Mrs. Parrish, speaking from first-hand experience, in 2013 already had served notice on what to expect from SEIU organizers:
As a Minnesota family child care provider, I was first approached by the SEIU in 2006 when an unknown man walked into my home, uninvited, asking me to sign a petition to the state for health insurance. He was persistent and wouldn’t take “no” for an answer. After arguing with me for some time, he finally left the petition for me to look over and sign with the understanding that he would be back later to retrieve it.
When I had time to read the fine print, I was shocked to see the word “union.” He neither identified his union affiliation nor disclosed that the card had anything to do with unionization. The tactics used in an attempt to gain my signature left me feeling violated.
After speaking with other child care providers throughout Minnesota and eventually in other states, I learned that my experience was far from isolated. Nearly every provider I spoke with believed that by signing this card they would receive more information about obtaining health care, increased training opportunities, or increasing child care reimbursement rates. I couldn’t find any who were fully informed that signing that card meant they supported unionization or wanted to join the SEIU.
To learn of the costs and potential benefits, we attended union-sponsored informational meetings and were full of questions – most of which went unanswered. Those who asked too many questions were often escorted out of meetings by union representatives.
The union apparently wasn’t big on a diversity of opinion. Unfortunately, by the end of the spring of 2015, the die was cast: SEIU Healthcare Minnesota had won the authority to deduct three percent from state-derived caregiver incomes, or up to $900 annually per worker.
Opponents of the measure are continuing their resistance by calling for SEIU decertification. Under the National Labor Relations Act, unionized workers may initiate a secret-ballot vote to decertify a union after expiration of the first three years of a bargaining contract if they collect supporting signatures from at least 30 percent of employees. The dissenters, led by Lakeville, Minn. provider Kris Greene, have initiated an online campaign (decertify.org) to collect decertification authorization cards that can be printed and mailed in. They also have a website (mnpca.org). Though they have spent tens of thousands of dollars out of their own pockets, the campaign could well succeed.
If it doesn’t, the Supreme Court again may be the home providers’ ace in the hole. In a Massachusetts case, eight female home care providers, led by Kathleen D’Agostino, sued Republican Governor Charlie Baker to address the issue avoided by Harris v. Quinn, in light of the state’s exclusive representation mandate. A lower court dismissed their case. So did the U.S. Court of Appeals, First Circuit. The plaintiffs since have appealed to the Supreme Court. They’re on sound footing. In a summary brief for the free-market Cato Institute this June, legal analysts Ilya Shapiro, Trevor Burns and Jayme Weber wrote:
Although the First Circuit treated this case (i.e., D’Agostino) as automatically resolved under Abood, it would actually be a vast expansion of precedent to say that “labor peace” justifies forcibly unionizing at-home workers who are independent except for the sole fact that some of their clients pay them through a government-subsidy program. States are already doing this in a number of fields, but expanding Abood would enable the states to go as far as mandating exclusive representation for private-school teachers whose schools receive funding through state voucher or tax-credit programs. Or apartment-building owners who lease to people in rental-assistance programs. Or for the federal government to impose exclusive representation on bank tellers who work at FDIC-backed institutions. Where does it stop?
D’Agostino v. Baker, then, represents a challenge to an expansion of state power on behalf of public-sector unionism that goes well beyond the Abood standard established nearly 40 years ago. If the High Court rules on behalf of the plaintiffs – which is far from certain, given its recent Scalia-less 4-4 stalemate in Friedrichs – non-Right to Work states will have less room to act as union functionaries. The Minnesota decertification campaign may be generating in-state support, but it may need all the out-of-state help it can get.