Disabling a Union Abuse

How a Medicaid program for the Disabled is being exploited to fund DFL and Progressive Left Policies

“In his arrogance the wicked man hunts down the weak, who are caught in the schemes he devises.”

Psalm 10:2

A group of personal care attendants (PCAs) recently filed a lawsuit against the State of Minnesota. They are trying to extricate themselves from a government union. This group, mostly parents with disabled children, has been fighting to protect the sanctity of their homes. The union is now inserting itself into their private affairs and taking millions out of a Medicaid program for the disabled to fund their “progressive” agenda.

The toll this has taken on these families is hard to measure. The peace of mind they once enjoyed has been replaced by constant anxiety about what unionization means for the future of the program. As taxpayers, they share the Center’s disgust that precious Medicaid dollars are being used to cor-rupt our democratic process.

How did this happen? What is being done about it?

In the 1970s, Minnesota shifted from institutionalizing people with disabilities. Wouldn’t it be better to live at home? Eligible people with disabilities get a Medicaid benefit used to direct their care, often by employing family members or other carefully selected attendants. This model saves taxpayer dollars and offers a superior service model. The program was always meant to offer a helping hand to disabled people and their families. It was never meant to turn caregivers into state employees subject to unionization.

Yet that is just what Governor Dayton did. Shortly after Dayton was sworn in, under the guise of helping “low-income workers,” he proposed that home-based providers be unionized as “state employees.” Dayton used a child care subsidy for low-income parents known as “CCAP” and a Medicaid benefit given to the disabled as grounds for the scheme.

Two government unions, American Federation of State, County and Municipal Employees (AFSCME) and the Service Employees International Union (SEIU) have been rolling out this predatory and lucrative scheme throughout the nation for over a decade. These unions invested heavily in Dayton leading up to the 2010 election, and Dayton has been very disciplined when it comes to paying back the unions that propelled him into office.

Undeterred by objections to what the Star Tribune editorial board called “the legislation’s convolution of the traditional worker-employer union model,” Dayton issued an executive order in November 2011 subjecting home-based caregivers to unionization.

AFSCME and SEIU had already been “canvassing” for years, identifying friend or foe. Providers have recounted how union canvassers would walk into their homes, often when young children were present, and pressure providers to sign a union card. Others would pretend the card was “just for information.” Or would refuse to leave or would return repeatedly until the provider signed the card. Out of fear or just get-out-of-my-house frustration, many providers signed the cards without understanding the consequences.

One child care provider recounted the first time she met a union organizer. “It was lunch time, so I was busy getting food prepared. The children were hungry and clamoring to eat. This guy just walked into my house and tried to get me to sign some card. I told him to get out of my house repeatedly but he just would not leave. Finally, I had to threaten to call the police.”

Because of experiences like this across Minnesota, a small group of home-based child care providers and PCAs became angry and organized. Then they hired legal counsel.

Labor attorney Doug Seaton, of Seaton Peters & Revnew, has represented a group of child care providers and PCAs for years and has seen them through many legislative and legal battles. Government unions call him an “extremist.” He is, indeed, when it comes to looking out for the unprotected and bullied.

Doug Seaton and his team took Governor Dayton and the unions to court. The executive order was struck down as unconstitutional. Yet Dayton did not give up.

After the DFL won majorities in the House and Senate in 2012, Dayton lobbied for and, after a ferocious floor fight in both houses, won passage of a law that declared child care providers and PCAs “state employees.”

These newly minted “state employees,” if unionized, could now bargain collectively bargain. But over what? All the PCA program benefits are determined and funded by Congress and the legislature. In recognition of that fact, they are specifically excluded from benefits like health care and pensions.

The StarTribune’s editorial board wrote, “It’s fitting that much of the Senate’s debate took place in the dark of night. But DFL lawmakers are fooling themselves if they doubt that Minnesotans see this overreaching legislation for what it is: the collection of a campaign IOU by labor interests who worked on the party’s behalf in 2012.”

Dayton signed the law in May 2013. While SEIU was organizing friendly PCAs for the election, something really big happened in June 2014. The U. S. Supreme Court ruled in favor of Pam Harris, a PCA from Illinois. Mrs. Harris sued Governor Quinn, arguing that she was not a “state employee” and could not be forced to pay mandatory dues like bona fide public employees. “Their intention was to turn our homes into union workplaces and siphon away precious Medicaid benefits from our sons and daughters. I refused to be bullied by their scheme.”

As is often the case, Pam Harris won a partial victory.

Harris v Quinn held that PCAs could no longer be forced to pay dues, but the Court did not strike down the scheme. Instead, the Court deferred to state legislatures, though the issue is still being litigated. That means SEIU can still speak for PCAs, whether they like it or not. And though it may surprise you, unions are still taking in tens of millions in dues.

As a result, SEIU was not deterred by Harris v Quinn. In August 2014, SEIU won a State-supervised mail-in ballot vote. Frankly, the ballots looked like junk mail or something you could put in the pile to read later. Only PCAs in the loop knew what to look for, and when.

Out of 27,000 PCA ballots, only 5,872 (22 percent) were returned in time to be counted. PCAs voting “Yes” numbered 3,543 (13 percent of the PCAs). The SEIU won because it only needed a “Yes” vote from half of the returned ballots. Under the law, it does not matter that over 21,000 people in the new bargaining unit did not vote.

Labor law assumes that people being “organized” work together—that everyone knows about an upcoming election. But PCAs do not work together; they are not connected geographically or socially. They are very much focused on caring for someone—often someone with overwhelming needs. As a result, many PCAs were not aware of the union vote, and many remain unaware of it even today.

Now we understand why SEIU was not deterred by Harris v Quinn. When Governor Dayton signed a collective bargaining contract in May 2015, SEIU set union dues at an astonishing three percent of gross wages, up to $948 a year for PCAs who had voluntarily, or unwittingly, signed a union card. Based on federal filings, we estimate that SEIU had 5,000 PCAs paying dues in 2015. That means the SEIU is collecting up to $4.7 million a year in Medicaid money in Minnesota alone.

If SEIU is the champion of low-wage home care workers, why is it taking three percent from people earning $12 to $14 an hour?

Also, why would 5,000 PCAs give the SEIU up to $948 a year? The answer: Some are on SEIU’s payroll or somewhere in the DFL network, while others believe the SEIU promise of better pay and benefits. Some unwittingly signed a card; others, it turns out, never signed a card. Someone forged their signatures, so dues are being deducted without their consent.

Thus a Medicaid benefit, generously offered by taxpayers for the disabled and their families, has been converted to a steady revenue stream for powerful government unions in Minnesota.

While the SEIU was “negotiating” its first contract with the Dayton administration, providers challenged the 2013 legislation. That’s how I met Kris Greene and her daughter, Meredie, at the federal court house in St. Paul. I call her “a mama bear” because when I asked Kris about why she fought so hard, she told me, “I don’t want a union getting between me and my daughter.”

Kris Greene and others took their case all the way to the U.S. Supreme Court, where they hit the 4-4 wall created when Justice Scalia died. At least for now, her judicial remedies have been exhausted, but other challenges are being litigated. The future of these cases hangs on the next appointments to the nation’s highest court.

What is the Center doing about this? The Center has walked alongside these providers, advocating against “welfare unions” for years. In 2015, we decided to go on the offensive by launching the Employee Freedom Project. The goal is to help bona fide public employees who are being forced to fund the agenda of government unions. But given this cynical capture of welfare dollars, our first objective is to reverse the trend of these deviant “welfare unions.” Once this model becomes the new normal, it will be impossible to reverse. The money is that big.

You may have heard about our first victory: When AFSCME finally made its move against child care providers, the providers were ready, and Doug Seaton and the Center were there to help. The state conducted another mail-in ballot election, but this time the union was decisively defeated by a margin of greater than 2 to 1.

What about the PCAs now represented by SEIU? Encouraged by the victory against AFSCME, we decided to form a coalition of PCAs across Minnesota called “MNPCA.” The goal: To decertify the SEIU by forcing a new election.

MNPCA has a steep mountain to climb. And while it is climbing, it has
to fight off the union and the Dayton Administration. MNCPA has to get 30 percent of the bargaining unit to sign a card calling for a new election. That just gets them to base camp. If they get enough cards, the State is required to call a new election. Then MNPCA has to go back to PCAs and make sure that at least half of them vote “NO.” The Center and MNPCA are confident that if we can reach enough PCAs in time, MNPCA can reach the summit and defeat SEIU.

The SEIU and Dayton administration are attempting to defeat MNPCA.
First, the state gave MNPCA a bad list—twice. Obviously, a good list is the key to reaching PCAs. On top of being out of date, the list is full of questionable data: for example, addresses that do not exist or lead to gas stations or empty lots; names and addresses that turn out to have nothing to do with the PCA program, like someone just filled out a union card from the phone book.

Second, when MNPCA launched the decertification, the Dayton administration began negotiating with SEIU for a new contract, even though the current contract does not expire until June 30, 2017. If a new contract is signed before MNPCA decertifies SEIU, MNPCA has to start all over again.

So MNPCA sued the Dayton administration.

As we write this, a judge has ordered the State to turn over a good list. We do not know how this story ends, but we know this: MNPCA has forced SEIU to defend hard-won turf, and to do so during a busy election season. Moreover, PCAs are fleeing the bargaining unit and the Dayton administration is being forced to defend the indefensible. They are not accustomed to that.

The Employee Freedom Project has made Minnesota hostile territory for the SEIU and AFSCME. And we have encouraged PCAs and child care providers all over the United States.

We count that as a success.