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SEIU, State of Minnesota Pick Pockets of Home Care Workers

Friday, August 12, 2016 9:01
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(Before It's News)

Home care providerIn 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 would seem destined for the history bin.  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.  That these employees received a portion of their salaries from state Medicaid funds, concluded the Court, does not subject them to a public-sector labor agreement.  Yet the Minnesota law’s supporters have sidestepped the 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 later that year sponsored a bill to prevent unions from deducting dues payments from 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 the Service Employees International Union.  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.  The SEIU-State of Minnesota 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 employee by a public employer.”  A family member or friend providing home care presumably would not have to worry about classified as a public employee.  At least a recent Supreme Court ruling in an Illinois case would have 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 Blagojevich, having contributed about $800,000 to his victorious run for governor the previous year.  The Illinois legislature codified the order several months later.  The State and the Chicago-based SEIU Local 880 (now known as SEIU Healthcare Illinois Indiana), soon reached 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:  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 in Illinois could not be compelled to pay agency fees to a union they didn’t wish to support.  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 light of Harris v. Quinn, why does the State of Minnesota continue to force home care providers to pay “fair share” union fees?  The primary reason is that the decision, though clearly supportive of the Right to Work, was incomplete.  While barring states from forcing home-based health care providers to join or pay agency fees to a union, the Court left unanswered the question of whether a state may mandate an exclusive bargaining representative for those workers who are not “full-fledged public employees.”  With that opening, unions and supportive officials, Governor Dayton among them, are claiming the authority to issue such a mandate.  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 sidestepping the issue of whether imposing exclusive representation upon dissenting workers is constitutional, the circuit court cleared the path for union organizing.  And an SEIU affiliate, SEIU Healthcare Minnesota, was prepared to go the distance.  The union petitioned the NLRB to hold 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 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 had announced to the nation:  We will defy the Supreme Court if that’s what it takes to boost SEIU membership.  The representation election eventually happened.  And the union won by roughly 3,500 to 2,300, thanks to 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. 


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