Victory: PCA Access to Union List Upheld by Court

The Minnesota Court of Appeals upheld Ramsey County District Court Judge Robert Awsumb’s orders to provide an organization of personal care attendants (MNPCA) with a contact list of PCAs in an SEIU bargaining unit. See, Minnesota Court of Appeals A16-1863 (Greene, et. al. vs. Minnesota Bureau of Mediation Services, et. al., July 24, 2017).

These PCAs, who are reimbursed under a Medicaid program designed help families care for a disabled family member at home, were declared “public employees” under a controversial 2013 Minnesota state statute but only for the purpose of collective bargaining. Payment under Medicaid has been used by the Service Employees International Union (SEIU) and its political allies like Governor Mark Dayton and the DFL in Minnesota, as a pretense for subjecting PCAs to unionization around the country. The so-called “union” was certified in 2014.

In 2014, the U.S. Supreme Court held in Harris v Quinn, that the First Amendment rights of these PCAs were violated by state laws that compelled them to join a union, and that these PCAs are not “fully-fledged state employees.” They are hired or fired by individual participants in the Medicaid program, often family members. The state is not the employer and therefore cannot compel them to pay any union dues. The state legislature, in conjunction with Congress, sets the pay for PCAs and other aspects of the program, not the union via collective bargaining.

Nonetheless, under Minnesota law, the SEIU is now allowed to represent all PCAs in this program, even if they are not members of the union.

As a result, a group of PCAs in Minnesota formed MNPCA to decertify the SEIU’s bargaining unit and hired labor attorney Doug Seaton to represent them. You can read more at MNPCA has uncovered evidence of significant fraud and intimidation in the 2014 SEIU election and on-going fraud and intimidation by the SEIU, including taking union dues from PCAs who never signed a union card, or harassing PCAs to join the union.

Fraud and harassment by SEIU was the subject of joint legislative hearings on May 8, 2017 in the Subcommittee on Employee Relations co-chaired by Rep. Marion O’Neill and Sen. Michele Benson. More hearings are expected. The photo below is Jason DeKruif, the son of former Senator Al DeKruif at the May 8 joint hearing. None of Jason’s PCAs received a ballot in the 2014 union SEIU election.

Janine Yates, a resident of Hopkins, Minnesota, works as a personal care assistant for a family friend. In an affidavit, Yates says an SEIU operative forged her signature on an election authorization form and then used it without permission. “As the SEIU solicitor walked away, I saw him writing on the document he had presented me for signature. I was worried, at the time, that he was signing this card with my name. My fears were justified …  Many months later, I realized that SEIU dues were being deducted from the PCA benefit I received for caring for my friend, which I never wanted and did not sign.”

The SEIU charges PCAs three percent (3%) of their gross wages paid under Medicaid, up to $948 dollars a year. Based on federal LM-2 filings, SEIU is estimated to be taking in as much as $4.7 million a year in new revenues from the Medicaid program.

How much of that $4.7 million goes to benefit PCAs and the disabled in Minnesota? For a look at how SEIU spends union dues on electing politicians (all Democrats) and issue advocacy (all extreme left-wing), take a look at Open Secrets.

MNPCA members view the SEIU as a threat to the Medicaid program that makes it possible to care for disabled Minnesotans at home. As the exclusive bargaining agent, SEIU has been given broad authority to speak for all PCAs, whether they are members of the union or not, both at the state legislature which sets PCA pay and other benefits under Medicaid, and at state agencies like DHS (Department of Human Services) which administers the program, and MMB (Minnesota Management and Budget) which negotiates a “contract” with SEIU.

The speed with which SEIU has embedded itself in the PCA program is in evidence with a DHS mailing that went out this summer to PCAs. The brochure, informing PCAs about “free” trainings, features the SEIU logo prominently next to the DHS logo. You can see the brochure here.

SEIU has negotiated a “stipend” of $500 dollars to be paid with $2.5 million in taxpayer dollars to members who attend one of these SEIU-directed trainings. I view the $500 as a “rebate” on the exorbitant union dues SEIU is charging PCAs. The Center reached out to PCAs in the union to let them know how much they were being charged; the PCAs we talked to had no idea dues were so high. We think SEIU was under pressure to reduce the dues but instead cut a deal with the state to get the rebate. Nifty, huh?

The Minnesota Court of Appeals ruling is a significant win for MNPCA and the 8,500 PCAs in Minnesota who have signed a card to authorize a new election. It is also encouraging to PCAs in other states who are fighting legal battles over contact lists.

According to lawyer Doug Seaton, “Kris Greene and MNPCA have asked Judge Awsumb to expand his orders to stop executive agencies BMS (Bureau of Mediation Services), DHS and MMB, from preventing a new union election.” Most PCAs did not even know they were in a union until MNPCA reached out to them. Many never got an election card in 2014. Surely they deserve a chance to vote.

It is the Center’s position that a new election is the only equitable solution for PCAs. Even better? Have the 2014 election tossed out for fraud. After stacking the deck in SEIU’s favor, Governor Dayton’s executive agencies have opposed and frustrated every attempt by PCAs to get a fair hearing and exercise their right to vote to decertify the SEIU.

The state’s refusal to provide MNPCA with an accurate contact list, followed by their submission of a series of very flawed and inaccurate lists, forced MNPCA, operating under a statutory deadline, to suffer major delays and expend precious time and money on false leads. The lists contained, for example, addresses that do not exist, empty lots, or names and addresses of people who had never been a PCA.

MNPCA needs election authorization cards from thirty percent (30%) of the bargaining unit to trigger a new election. The SEIU has stated to its members in phone conferences that there are now only 19,000-20,000 PCAs in the bargaining unit; we think SEIU and repeated contact from MNPCA has driven a lot of PCAs into a PCA program that is free of unionization (called “Traditional”). Doug Seaton says that, “SEIU is still officially claiming the original 27,000-28,000 PCAs, presumably to exaggerate the number of signatures MNPCA needs to obtain the election.”

DHS is tasked with keeping official lists of PCAs but the Dayton administration admitted in court to Judge Awsumb last year that it had not been keeping lists of PCAs (even though the 2013 PCA law required the state to do so). The initial list obtained by MNPCA was apparently the union list from the 2014 election.

Doug Seaton said this week that, “We think we have enough cards now, but want to be sure there are no arguments against the election, so we continue to obtain more. MNPCAs next steps are to re-file the request for a decertification election petition and to ask the courts for help restraining or overturning any more BMS decisions to stall, prevent or deny MNPCA the election.”