Summary: In an effort to help their political supporters in the unions, Minnesota Governor Mark Dayton and the state’s legislature classified Minnesota’s home care providers as government employees for purposes of collective bargaining. Following a highly questionable vote, these home care providers were unionized. SEIU Healthcare, part of a national union closely tied to President Obama, became their union representative. Now care providers like Kris Greene are fighting back, seeking to decertify the union, in what may be the largest decertification effort in labor law history.

In Minnesota, home care providers—also known as personal care assistants (PCAs)—are individuals, usually family members, who take care of disabled persons at home and who are employed by those for whom they care. They receive a small Medicaid subsidy to assist in their efforts.

In May 2013, after the longest legislative debates in state history, the Minnesota legislature passed the Individual Providers of Direct Support Services Representation Act, and Governor Mark Dayton (D) signed the bill into law declaring that:

For the purposes of the Public Employment Labor Relations Act … individual [homecare] providers shall be considered … executive branch state employees. … This section does not require the treatment of individual providers as public employees for any other purpose.

In other words: PCAs—people who provide home care to the disabled, usually family members—are state employees in Minnesota, but only for the purpose of their possible representation by unions in collective bargaining.

PCAs do not receive the same benefits and rights as government employees. PCAs do not have the sort of employer/employee relationship with the government that government employees have. Only individuals who need care hire PCAs. These same individuals are the ones who give instructions to their PCAs, and only they can fire their PCAs. At no time is the government involved in any of these traditional employer responsibilities. The true employer is (and should be) the disabled person, not the government.

After the bill was signed, the Minnesota Bureau of Mediation Services (BMS) held a certification election, that is, a vote to determine union representation. Most people being “represented” were taken by surprise when they learned of the vote, so it’s not surprising that the turnout was dismal. (Think of the turnout in your home precinct when there’s an unscheduled election, much less one that’s unprecedented. Other than those deeply involved in the process, how many people even know an election is occurring?)

During the BMS-supervised election, which was held on August 26, 2014, only 5,849 individuals voted in the certification election for SEIU Healthcare Minnesota despite the fact that there are 26,977 PCAs. That’s a turnout of 21.7 percent.

And of these, only 3,543 of the voters voted for union representation for Minnesota PCAs. Yet even though these few thousand voters made up only 13.1 percent of the total number of PCAs, the union won, because 3,543 (out of a possible 26,977) was a majority of those who voted. And so in August 2014, SEIU Healthcare Minnesota became the exclusive bargaining representative for all the PCAs.

SEIU Healthcare Minnesota is, of course, a part of the Service Employees International Union, a major player in American politics. In the early days of the Obama administration, for example, the head of the SEIU was the most frequent visitor to the White House.

Supporters of freedom of assembly and free speech, and of limiting union representation to actual employees who want it, did not take this lying down. Now, groups are fighting this unionization in two ways: a lawsuit and a decertification campaign.

The lawsuit is supported by a group of Minnesota PCAs, represented by Douglas Seaton, against Governor Dayton and the SEIU. The campaign is led by Kristina (Kris) Greene, a five-year PCA, and other PCAs with the help of the Center for Worker Freedom (CWF) and its coalition allies.

BACKGROUND: THE MINNESOTA PERSONAL CARE ASSISTANCE PROGRAM

Responding to the desire of disabled Vietnam veterans to stay in their communities, PCA services were introduced in Minnesota on July 1, 1977. The services were part of a stateplanned service for adults with physical disabilities.

In 1978, PCA services were added to Minnesota’s Medicaid program as an optional service. From 1984 through today, the program has been expanded to include children, the elderly with disabilities, and those with mental illness or disease.

The Minnesota PCA program allows PCAs to stay at home and care for their loved ones, rather than put their loved ones in an institution. Because of this, the PCA program is thriving, and the PCAs truly appreciate it. In fact, according to the Minnesota Department of Human Services, over 26,000 individuals participated in the program in 2014 at a cost of $684 million.

A major benefit of the program is its flexibility. Individuals who have disabilities are given four options: the Flexible Use option, the traditional PCA option, the PCA Choice option, and the Shared Care option.

The Flexible Use option allows special-needs individuals to choose when they would like a PCA to be at their home.

Under the traditional PCA option, an agency will train and pay the PCA workers.

With the PCA Choice option, individuals hire and train the assistants themselves.

The Shared Care option provides one worker for two or three people living in the same area

Compared to other states, Minnesota is a leader in PCA programs by requiring formal training and having a financial intermediary assist with taxes and payroll. (Some states, like New York and Massachusetts, also look into living situations and social needs.)

By allowing nonelderly adults with disabilities to arrange for their own care at home, rather than live at an expensive nursing home, PCA services were intended to reduce costs for such individuals.

THE LEGACY OF HARRIS V. QUINN

Like Minnesota, Illinois has a PCA program. It led to one of the most important Supreme Court cases in labor law history, Harris v. Quinn. The Court held that PCAs couldn’t be forced to join a union or pay agency fees (fees, in lieu of dues, paid by non-members of a union).

In Illinois, the attempts to unionize home caregivers actually started in 1985 with the SEIU’s efforts to unionize PCAs. At that time, the unions were stopped by a labor board ruling.

That did not prevent Illinois Governor Rod Blagojevich (D) from trying again. Just like Minnesota’s Governor Dayton, Blagojevich unionized personal assistants as pay back to the unions who supported him during his election. Blagojevich accomplished this in 2003 by issuing an executive order allowing the state to recognize personal assistants under Illinois’ “Rehabilitation Program” as state employees. (Later, Governor Dayton tried to unionize the PCAs by executive order, as Blagojevich had done in Illinois, but he was stopped by a District Court.)

When unionizing PCAs, Blagojevich got around the 1985 ruling by adding that the PCAs were government employees for collective bargaining purposes only.

Blagojevich’s order read in part:

WHEREAS, the personal assistants work in the homes of recipients throughout Illinois and therefore cannot effectively voice their concerns about the organization of the Home Services program, their role in the program, or the terms and conditions of their employment under the Program without representation …

Shortly thereafter, an SEIU local quickly became the union claiming to represent personal assistants. And, prior to Harris v. Quinn, those who did not join the union were still forced to pay an agency fee, a payment that purportedly reimburses a union for the cost of collective bargaining, not political activities.

After Blagojevich went to jail, his successor Pat Quinn in 2009 used Blagojevich’s method to unionize personal assistants under a similar but different initiative, the “Disabilities Program.”

Standing in his way, though, was Pamela Harris, a PCA and mother of a son who has a disability. After learning of Quinn’s order from a union representative, Harris sent letters to other personal assistants, explaining that the unionization was going to reduce the Medicaid support and the independence of the personal assistants. She said her decision to send the letters was based on her support of the First Amendment. She declared: “I fully support, share and defend freedom of association and know that every worker should have the right to decide for themselves whether or not they belong to labor organizations.”

The majority of personal assistants voted against joining the union, but Quinn refused to rescind his order.

With the help of the National Right to Work Legal Defense Foundation, Harris and other PCAs sued the governor in the U.S. District Court for the Northern District of Illinois, challenging the agency fees as a violation of their First Amendment rights.

On June 30, 2014, the U.S. Supreme Court ruled 5-4 in favor of Harris and the PCAs. In the majority’s opinion, the Supreme Court first rejected Governor Quinn’s argument that the agency fee promotes peace. Writing for the majority, Justice Samuel Alito stated:

Petitioners do not contend that they have a First Amendment right to form a rival union. Nor do they challenge the authority of the [SEIU] to serve as the exclusive representative of all the personal assistants in bargaining with the State. All they seek is the right not to be forced to contribute to the union, with which they broadly disagree.

Governor Quinn had argued that the union helped PCAs by improving wages and benefits, organizing training programs, etc. The Supreme Court also dismissed this argument:

The agency-fee provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join. No such showing has been made.

The Court mentioned in explaining its reasoning that other organizations depend on voluntary donations and have been able to advocate effectively. Therefore, the union’s argument that it was effective because of the forced dues was not persuasive.

Alito added that, “except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Because of the Harris ruling, only traditional government employees who receive rights and benefits can be forced to pay agency fees, not people who work at home and receive Medicaid subsidies.

Of the case, Pamela Harris says, “As a mother, I protected my right to care for my son without intrusion. I refused to be bullied into compliance with their scheme.”

Unfortunately, despite the defeat of the unions in the Harris case, PCAs are still often tricked into signing a dues deduction authorization, which is very difficult to cancel. As a result, many have dues withheld, even though they have a technical right to avoid the withholding of dues.

BATTLE LINES ARE DRAWN

On August 18, 2015, in the case of Greene v. Dayton, six homecare providers sued Minnesota Governor Dayton and SEIU Healthcare in Minnesota’s federal district court. They argued that the PCA/union statute violates the Supremacy Clause of the U.S. Constitution, changes their preexisting contracts, and violates the Contract Clause of the Minnesota and U.S. Constitutions.

Unfortunately, Kris Greene and other PCAs lost in the District Court and in the Eighth Circuit Court of Appeals. And, with Justice Scalia’s death, the U.S. Supreme Court deadlocked on the appeal. Since this effort is at least temporarily stymied in the courts, the Center for Worker Freedom, a project of Americans for Tax Reform along with other coalition allies, is helping Kris Greene and a dozen other PCAs launch a decertification campaign in Minnesota.

Kris Greene is a five-year PCA in the Lakeville area of Minnesota. The mother of a daughter with a disability, she has taken care of her daughter for over 24 years. Because she appreciates the Medicaid subsidy, she does not want the union to come between her and the care of her daughter.

She wrote in a newspaper op-ed:

On June 10, 1992, I gave birth to my daughter Meredie. She was a beautiful baby girl; my husband, Dave, and I couldn’t have been happier or prouder. When we were told that Meredie suffered from RubinsteinTaybi syndrome, we knew we were in for some unique challenges. But we also knew having her in our lives was more than worth it. Five years ago, I joined a Minnesota program and became a personal care assistant (PCA) to my daughter. Though I had been caring for her for her entire life, joining this PCA program allowed us to receive a modest Medicaid subsidy to assist in her care. It also allowed Meredie to live at home, instead of in a government-run institution. My husband and I consider this public support a generous gift that we have not taken for granted and for which we are very grateful. Meredie continues to live at home with us, where we know she is happy and safe under our care, instead of with a stranger who may or may not have her best interests at heart. Unfortunately, this wonderful program is being looted by a third party that has no business intruding in the affairs of my family: the Service Employees International Union (SEIU).

Greene described how her group was blindsided by politics.

A few years ago, the Minnesota Legislature passed a law declaring me and other PCAs “public employees.” The reasoning, I suppose, is that we receive some public support and that, therefore, we work for the state. That’s ridiculous, of course. I work for my daughter, not the state of Minnesota. So why would the Legislature pass such a law, especially since we are not entitled to the pension or health care benefits that regular public employees have access to? The answer is written right there in the law itself. We are considered public employees only for purposes of “collective bargaining.” In other words, only so that politicians in St. Paul can force us into a union. And that’s exactly what they did.

She has set up a website, MNPCA.org, as a forum for PCAs to connect with one another and exchange resources and tips. They can also read about the decertification campaign and other news items, as well as fill out the authorization card.

On the site, Greene explained why she has launched the campaign:

I am grateful for the public support we receive to help us care for our daughter. It’s a government program that has worked wonderfully, allowing special needs individuals to be at home instead of an institution. I worry that a union will make this valuable program both less effective and more complicated.

She does not want the union to take 3 percent of the subsidy. “I don’t need a union to help me take care of my daughter. And I don’t need a union taking 3% of our money.”

Center of the American Experiment vice president Kim Crockett noted in an article that “here you have SEIU skimming 3 percent off the top from low-wage PCAs who are being compensated with a Medicaid benefit intended to help disabled Minnesotans.”

DECERTIFICATION

It’s much easier to get a union certified than decertified. Under the rules, the homecare providers seeking decertification need to persuade at least 30 percent of the bargaining unit (over 9,000 PCAs in Minnesota) to sign authorization cards. The deadline is in early December. (The card can be obtained at the MNPCA.org website.)

If the Minnesota Bureau of Mediation Services confirms these cards, another vote will be held to determine whether the SEIU Healthcare union should continue to represent these workers. A majority of those who vote will decide whether the SEIU will continue to be their exclusive representative and be authorized to deduct up to $948 per year in dues from PCA members’ benefits.

The outcome of this effort will reverberate across the country. In the event the homecare providers do not succeed, unions will continue to support the election of politicians who will use this playbook to pay the unions back. In addition, in Minnesota, up to 3 percent of the Medicaid subsidy that PCAs receive will go to the unions (that is, 3 percent of the payments that should go to care providers who are stuck as union members). The program will also become more complicated and less effective. And the SEIU will use the dues paid by PCAs to support politicians with whom the PCAs may not agree.

On the other hand, if Greene and the other personal care assistants are successful, this will be the largest decertification in the history of U.S. labor law and will deal an expensive and embarrassing blow to this union.

Stay tuned as Labor Watch follows this important story.

Olivia Grady is a research fellow at the Center for Worker Freedom, a project of Americans for Tax Reform in Washington, D.C.