Process for unionizing non-state workers raises red flags

June 19 2014

Illinois is a party to a landmark federal lawsuit, Harris v. Quinn. In this case, the state has been forced to defend before the U.S. Supreme Court its decision to permit the unionization of people who are not state workers. The people in question participate in a state-administered Medicaid program that allows them to provide in-home care for disabled relatives as an alternative to institutionalization.

In Harris v. Quinn, there are two groups of Medicaid beneficiaries that were permitted to be unionized by executive order by Illinois governors. One group of beneficiaries, known as the rehabilitation unit, voted against unionization, and is participating in the lawsuit so that the pressure and threat to unionize can be removed. Another group of beneficiaries, known as personal care assistants, was unionized under the Service Employees International Union, or SEIU. However, extensive review of state documents finds questionable the decision by Illinois state government to recognize the SEIU as the bargaining representative of the personal care assistants. Beyond the parties in the lawsuit, this report also proves that it is questionable for the SEIU to represent a third group of Illinoisans – day-care providers – who were unionized but do not work for state government.

As a matter of law, a union should not be recognized as the representative of any group of workers until it demonstrates that it has the support of a majority of those workers. However, a close review of state documents found that it is not clear whether the SEIU actually had the requisite support among personal care assistants or day-care providers to serve as their bargaining representative in Illinois. In the absence of strong proof of support, the union should never have been considered these groups’ representative in the first place.

Unionization of personal care assistants

Illinois operates the Home Services Program under a waiver from the federal Medicaid program that allows severely disabled individuals to live at home rather than be institutionalized. The program’s beneficiaries typically are cared for by close relatives, referred to as “personal care assistants,” who receive a benefit from the state to help offset the cost of this care.

It had long been understood that participants in this program were not covered by the state’s labor law and were not suitable for unionization. In 1985, the Illinois State Labor Relations Board was asked to rule on unionizing personal care assistants. The board found that “[t]here is no typical employment arrangement here, public or otherwise.”1

But on March 4, 2003, then-Illinois Gov. Rod Blagojevich issued an executive order calling for personal care assistants participating in the Home Services Program to be treated as state employees for the purposes of collective bargaining.2 The executive order undid the labor board’s findings, but by itself it didn’t result in the participants of this program being unionized; actual unionization required evidence that one of the state’s unions had majority support of the personal care assistants.

It wasn’t long before SEIU claimed it had the majority support among program participants. Even before the executive order was issued, the union had already begun recruiting members and, according to correspondence between the union and the state’s Department of Central Management Services, the state had already begun withdrawing membership dues from some personal care assistants.3

This is highly irregular behavior by the state. Ordinarily, deduction of union dues does not happen until two things take place: 1) a union has demonstrated majority support of its membership and is recognized by the state, and 2) acollective bargaining agreement is signed. For Illinois state government to begin collecting dues on behalf of a union thatwas not authorized to bargain was extremely unusual, highly premature and raises serious red flags.

On March 11, 2003, just a week after Blagojevich’s executive order was signed, SEIU Local 880 presented its proof of majority support. In a letter to Nancy Pittman, counsel for labor relations at the Illinois Department of Central Management Services, SEIU Local 880’s head organizer, Keith Kelleher, claimed that 9,496 personal care assistants already were paying dues as union members. He also presented copies of 1,131 membership cards, supposedly signed by other personal care assistants in total. According to Kelleher, there were 20,475 personal care assistants. With 10,627 either paying dues or having signed cards indicating union support, SEIU supposedly had the support of a narrow majority of 51.9 percent.4

It appears the state accepted the union’s claims at face value. Public document requests to state government have yielded no records of the state taking even rudimentary steps to verify the union’s claims, which should be standard protocol. Such steps would have included comparing signatures on membership cards with those on other state forms to confirm they were authentic, or even double-checking to make sure that the names on the cards were different from those who already had dues deducted.5

When all the facts are considered – lack of verification, narrow majority and irregularity of collecting dues prior to certification and first contract – it isn’t clear that the SEIU ever had the support of a majority of personal care assistants. Yet the state proceeded to collectively bargain with the union.

Unionization of day-care providers

Evidence of support for the SEIU among day-care providers also is weak.

As was the case with personal care assistants, the unionization of day-care providers began with an executive order signed by former Gov. Rod Blagojevich in February 2005.6  In this case, union recognition was conducted through a mail-in vote.On March 16, 2005, the American Arbitration Association conducted a mail-in election by sending out 50,228 ballots to eligible day-care providers. Of these, 16,756 – barely a third – were returned by the April 7, 2005, deadline. Of the 16,756 cards mailed back to the American Arbitration Association, 13,484 indicated support for SEIU Local 880.7 While the union had a clear majority out of the ballots cast, the SEIU was eventually chosen as representative for daycare providers based on the support of 27.6 percent – barely a quarter – of those eligible to vote.

In the unionization efforts for both personal care assistants and day-care providers, there was no organized opposition to the union – but also uniquely, there was hardly any time: an executive order was issued and either ballots or signed cards were counted within a week (in the case of personal care assistants) or two months (in the case of day-care providers). The rush to unionize may have led to union opposition being cut off from ever materializing.

How much so is illustrated by the example of “personal support workers.”

Failed attept to unionize personal support workers

Similar to the personal care assistants who were unionized in 2003, personal support program participants predominantly are people who care for disabled relatives under a Medicaid program, also administered by the state. Pamela Harris, the plaintiff in Harris v. Quinn, participates in this program so that she can provide care for her adult son, Josh. Harris and other personal support program beneficiaries typically care for persons with mental disabilities, while personal care assistants typically care for relatives with physical disabilities. The programs are very similar and some beneficiaries may be eligible for either program.

The executive order to unionize personal support workers was signed by Illinois Gov. Pat Quinn in June 2009.8  In this unionization effort, more than three months passed before ballots were mailed out for a secret-ballot vote on Oct. 1, 2009. In this case, SEIU Local 73 contended with the American Federation of State, County and Municipal Employees Council 31 for representation rights.9  But what is distinctive about this executive order and the activities that ensued is that a coalition of caregivers opposed to collective bargaining formed and succeeded in rejecting union representation. Oct. 19, 2009, was the deadline for ballots to be returned, and the results indicated a clear defeat for the unions: 220 votes for AFSCME representation, 293 votes for SEIU representation and 1,018 votes against representation. State records requests did not reveal a record of how many ballots were mailed out.10

The dramatically different results from the personal support workers’ organizing effort suggest that there might have been much stronger union opposition from personal care assistants and day-care providers that a fairer process for judging union support would have brought out.

An unfair processs

The process for unionizing personal care assistants and daycare providers was not fair.

In the case of personal care assistants, a card-check process was executed while the state was already collecting dues on the union’s behalf.

In the case of day-care providers a union was recognized even though it could only show support from a quarter of those it presumed to represent.

In both cases, the process was rushed; program beneficiaries who did not want to belong to the union were not given ample time to organize or discern whether a union would benefit them. The turnaround time for representation was around a week for personal care assistants and two months for daycare providers.

While the benefits for program participants are questionable, the benefits for unions have been tremendous. The SEIU collects approximately $20 million in union dues annually from these two groups.11  However, despite the financial support that personal care assistants and day-care providers are forced to provide the unions, union filings show their support for the union is lacking. SEIU Healthcare Illinois/Indiana, the SEIU local that took over representing these two groups after Local 880 was closed down in 2009, has an extremely high number of nonmembers among those it represents. These nonmembers, or “agency-fee payers,” are significant, because these workers refused to join the union formally even though they are covered by the union contract and obligated to pay union dues. Out of the 93,873 that Healthcare IL/IN represents, 36,743 providers – almost 40 percent – never bothered to join the union. This is extraordinarily high for Illinois, where that figure is usually just over 1 percent for the average union.12  In fact, such dissatisfaction is perhaps why some personal care assistants are plaintiffs in the Harris v. Quinn lawsuit.

Conclusion: Fair process needed for determining union support

Unions should never be imposed where they are not wanted, and people should not be forced to pay money to a union they do not want to support. Illinois state records demonstrate that personal care assistants or day-care providers may have never wanted to be represented by unions in the first place. The laws that govern how unions are installed should be changed to protect Illinoisans from the imposition of unwanted unions.

Because the evidence that the SEIU had majority support is so weak in both groups, SEIU should be removed as the representative for personal care assistants and day-care providers and made to refund dues it has collected from those who did not wish to be organized.

The practice of recognizing unions via card-check should end, because union officials control the entire process of securing the signed cards that are used to prove union support.13 SEIU is collecting $20 million per year from the personal care assistant and day-care provider groups. With so much money potentially at stake for large groups of workers, the temptation for union organizers to resort to fraud, force or forgery is too strong. The secret ballot is the only certain defense workers have against deception or intimidation.

In the future, union recognition elections should be done via secret ballot, with sufficient time given to both sides so workers can be fully informed about their choices. And in order to be certified a union should receive votes from a majority — not of ballots cast, but of persons eligible to vote. This rule would prevent a minority of union supporters from imposing their will on a majority that either opposes, is indifferent to or unaware of an impending union election.

The history of the unionization of personal care assistants and day-care providers shows that the process for certifying unions in Illinois is too easily bent in the favor of union organizers. This is not fair to those who do not support a union. State labor laws should not exist to allow unions to organize wherever they want; state labor laws should give workers a fair chance to choose a representative – or go without one if they prefer. The story of the SEIU and its dubious “successes” in organizing those who would not ordinarily qualify as workers should lead Illinois to rethink how and when unions will be recognized.

TAGS: harris v quinn, illinois, pam harris, SEIU, U.S. Supreme Court, unionization