State Supreme Court Ruling Could Mean Big Boost For Public Employee Unions

By Dave Lemery | Watchdog.org

A Pennsylvania Supreme Court decision this week has supporters of Gov. Tom Wolf hailing it as a victory for the incumbent Democrat, while opponents say it merely serves to strengthen the political power of unions at the expense of those who care for elderly and disabled Pennsylvanians.

The 5-2 decision in two related cases, Smith v. Wolf and Markham v. Wolf, overturns a lower court ruling that had invalidated portions of an executive order issued by Wolf in 2015. Wolf’s order related to home care workers who provide assistance to elderly and disabled individuals who require care but prefer to remain in their homes rather than moving into a care facility.

The order from the governor gave public sector unions access to those workers for the purpose of organizing them and representing them in contract negotiations.

The lawsuits argued that Wolf didn’t have the authority to issue such an executive order and that he had assumed powers that are vested solely in the state Legislature. The lower court agreed with this argument, but the Supreme Court did not.

According to the high court, because individual workers would have the ability to opt not to join a union, Wolf’s order doesn’t have the force of law and therefore doesn’t tread on lawmakers’ turf.

“Critically, the entire process set forth in the Order is voluntary, non-binding, nonexclusive, and unenforceable,” Justice Debra Todd wrote for the majority. “Indeed, it is this nature of the Order that drives much of our analysis of the validity of the Governor’s actions. While the Executive Order creates a formal process for conducting discussions, including the election of a [direct care worker] representative, it does not require the election of a representative.”

Chief Justice Thomas Saylor and Justice Sallie Mundy each wrote dissents from the majority decision. Saylor argued that the executive order rewrites the state’s labor law, and whether it is voluntary or not is largely irrelevant.

“The majority relies substantially on the character of the executive order as being ‘voluntary, non-binding, non-exclusive, and unenforceable,’” Saylor wrote. “To me, the latter observations are relatively beside the point. In my view, the Governor’s social policy initiative – particularly in a regulated arena involving the payment of government funds to secure home care services … represents too great a foray into legislative prerogatives to be considered anything less than a legislative act.”

Mundy wrote that she agreed with Saylor’s dissent and went into further technical detail to support her thinking.

The Wolf administration hailed the majority ruling as “a victory for seniors and people with disabilities in Pennsylvania.”

“The court’s decision affirms a key part of my plan to provide choices for seniors, improve home and community-based care and attract more qualified homecare attendants,” Wolf said in a statement. “Pennsylvania’s older population is rapidly growing. By 2030, one in four people in the state will be age 65 and older, and half of those will need some form of daily care. Most seniors prefer to live in their own home with their families to get that care. They deserve to have that choice while also saving costs to taxpayers.”

The Service Employees International Union and Pennsylvania Attorney General Josh Shapiro were among those lauding the court’s decision.

“Home health care workers deserve the union rights afforded by @GovernorTomWolf,” Shapiro wrote on Twitter. “It’s only right to lift up a group of people dedicated towards service & care.”

But the nonprofit Commonwealth Foundation, a right-leaning Pennsylvania-based advocacy group, noted that Wolf and unions such as SEIU and AFSCME stand to benefit significantly from Wolf’s order – and that Wolf, in turn, has been the recipient of a great deal of union money for his campaigns.

“Government union leaders invested heavily in Gov. Tom Wolf’s election campaign, and, today, that investment paid off,” said Charles Mitchell, president and CEO of the Commonwealth Foundation. “This outrageous decision will hurt both home care workers and care recipients, who are often elderly parents, sick children, or disabled relatives. Now, union rules and regulations will invade these intimate relationships at Governor Wolf’s behest for no good reason.”

The foundation noted that AFSCME and SEIU could stand to collect an additional $8 million a year from home health care workers, and that since 2013 Wolf has received almost $4 million from those two unions.