In January, the U.S. Supreme Court is set to hear arguments for Harris v. Quinn. A case that will determine whether a state can force homecare providers to accept union representation and financially support them.
In total, 18 states at some point passed legislation, or governors issued executive orders, allowing unions to represent and force union dues payments on state-subsidized home-care providers. Since 2005, when the forced unionism scheme started, unions have been able to siphon “tens of millions of dollars from the child care assistance programs.”
Harris v. Quinn will determine if such laws are consistent with the First and Fourteenth Amendments to the United States Constitution. An amicus brief submitted by the Center on National Labor Policy argues in favor the petitioner (Harris, an Illinois home-care provider) that:
The challenged provisions mandating involuntary association violate the First Amendment by distorting the “marketplace of ideas” which it creates, thereby reducing competition and the amount of care, silencing individual providers and hindering their effectiveness.
Beyond whether the forced unionization scheme of personal care attendants violates the U.S. Constitution, many argue that the state laws unionizing care providers contradict U.S. federal private-sector labor law. Specifically, personal care attendants are independent contractors, which cannot be unionized under the National Labor Relations Act. Further, homecare providers are considered private-sector employees and state law cannot just declare them public employees for the exclusive purpose of collective bargaining.
For instance, a legal opinion of Minnesota’s forced unionism of childcare providers law from the law firm Seaton, Peters & Revnew finds:
The family child care providers affected by the proposed legislation can only be properly described as private sector under the NLRA and can not be converted to “public employees” simply by saying so. Federal law mandates that it is an unfair labor practice for an employer to “…dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it…” 29 U.S.C. 158 (a)(2) Yet the legislation purports to create a framework to form a union of employers and business owners and as such, is directly contrary to Section 8(a)(2)’s prohibition against employer interference financial contribution to a union. The election called for in the legislation would provide for representation of these employers by unions, giving the employers an impermissible voice in the administration of a union.
While the Harris v. Quinn decision should settle the matter, noteworthy state developments are still occurring.
For example, in Minnesota, even though the statute that called for a union election of state-subsidized home-care providers has been enjoined (due to Harris v. Quinn), a Watchdog.org report exposes the underhanded nature of these laws and corrupt union organizing campaigns:
Opponents of an effort to unionize family child-care providers have long suspected — but could never prove — that some taxpayer money designated for training was instead used for union organizing.
There now appears to be a smoking gun that supports their allegation — mandated disclosure forms, uncovered by Watchdog Minnesota Bureau, were filed with the U.S. Department of Labor by the American Federation of State, County and Municipal Employees.
Two LM-2 annual financial reports filled out by AFSCME Council 5 in 2011 and 2012 show $33,300 in taxpayer money from Ramsey County DHS — Department of Community Human Services — were categorized as an “organizing reimbursement” and apparently spent on organizing for a controversial child-care providers’ union.
Unfortunately, not every state is stalling personal care attendant legislation before the upcoming U.S. Supreme Court rules in Harris v. Quinn. In the first day of the Vermont legislative session, the Senate Education Committee passed a bill allowing unionization of childcare providers.