Right now, the United States Supreme Court is considering hearing a case called Bierman v. Dayton, in which eight homecare workers from Minnesota argue that forcing an exclusive representative on them violates their First Amendment rights.
As the Fairness Center argued in an amicus brief submitted on behalf of its clients on January 16, 2019, homecare workers serve an important purpose, and their rights are threatened by exclusive representation. The following is adapted from that brief.
Forced unionization presents a significant threat to homecare workers’ First Amendment rights. Under the system now operational in Pennsylvania, for example, a representative is elected by a majority of votes cast, with an election held if an employee organization has the support of only 10% of workers. The homecare representative can win an election with a bare majority of those voting, then becomes the speaker for over 20,000 homecare workers in the state on employment topics with the Commonwealth.
Unfortunately, this arrangement effectively replaces the previous setup where the homecare worker was free to negotiate his own conditions of employment directly with his employer. Instead, the representative now speaks with the Commonwealth for homecare workers on, among other topics, “[s]tandards for compensating Direct Care Workers,” “Commonwealth payment procedures,” “[t]raining and professional development opportunities,” and “[v]oluntary payroll deductions.”1 The representative’s speech on these topics—previously discussed and resolved between homecare workers and the disabled or elderly individuals for whom they care—is presumed to represent the interests of homecare workers and takes place on a platform before high-ranking government officials.
The threat to First Amendment rights is especially egregious where the representation takes place outside of the employment context. In Pennsylvania, the Executive Order not only forces on homecare workers an exclusive speaker—the equivalent of a union—and requires the government to recognize and discuss with them terms and conditions of employment but also mandates that this discussion happen with no involvement from homecare workers’ actual employers.
Perhaps equally harmful, imposing the equivalent of exclusive representation outside of the employment context means that homecare workers are without the protections historically afforded to those forced into a fiduciary relationship with an exclusive representative. For example, in upholding Governor Wolf’s Executive Order, the Pennsylvania Supreme Court noted that such representation would be unaccompanied by any obligation to bargain in good faith, any resort for homecare workers to a state labor relations board, or any enforceable agreement between homecare workers and their employers.2 And the representative, which is collecting significant dues from homecare workers on the promise of change, is not allowed to strike or submit disputes to interest arbitration when the government is unwilling to come to an agreement.3
There is no interest, compelling or otherwise, to justify exclusive representation in the homecare setting. As the Supreme Court observed in Harris, the “labor peace” justification of exclusive representation is not present in the homecare context, where workers “do not work together in a common state facility but instead spend all their time in private homes, either the customers’ or their own.”4 And any interest wholly dissolves with the mandating of representation outside of the employment context, as Pennsylvania appears to have done.5 (“Nothing in this Executive Order shall be interpreted to grant Direct Care Workers the status of Commonwealth employees.”). It makes little difference whether individual homecare workers remain free to speak with their employer or the government when their supposed “representative” is already putting words in their mouth at the negotiating table with high-ranking public officials.
Pennsylvania’s experience highlights the potential for growing and unchecked abuse of First Amendment rights. In Pennsylvania, exclusive representation of homecare workers is a game of political football: attempted during one governor’s administration, partly enjoined and rescinded, then abandoned and replaced during the term of the next governor—and then again attempted, this time successfully, when yet another governor was elected. And homecare workers’ rights were ultimately sacrificed on the order of a single politician, the governor, with no input by the legislature or any other political check.6 (“Executive orders have the disadvantage of being revocable by succeeding governors with the stroke of a pen . . . .”).
Pennsylvania’s imposition of exclusive representation of homecare workers thus exemplifies the need for the Supreme Court to clarify the application of the First Amendment. While it is currently homecare workers who have become political pawns, this unchecked power threatens many other workers whose rights might also be sacrificed for the advantage of governors and other politicians seeking to curry political favor with public unions.7 Homecare organizers have advanced no principle that would limit such an arrangement to the homecare or daycare context; literally any individual could be targeted for exclusive representation if permitted outside of the employment context.
1 4 Pa. Code § 7a.113.
2 See Markham v Wolf, 190 A.3d 1175,1188–89 (Pa. 2018).
3 Id. at 1188.
4 Harris v. Quinn, 134 S. Ct. 2618, 2640 (2014).
5 See 4 Pa. Code § 7a.115.
6 See Deborah Chalfie et al., Nat’l Women’s Law Ctr., Getting Organized: Unionizing Home-based Child Care Providers 8 (2007), available at http://www.nwlc.org/sites/default/ files/pdfs/GettingOrganized2007.pdf.
7 See Transcript of Oral Argument at 53–54, Harris v. Quinn, 134 S. Ct. 2618 (2014) (No. 11-681) (question of Justice Alito noting that unionization of workers in Illinois by executive order was attempted by a governor who had received 14 campaign contributions from unions).