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Challenges mount against efforts to unionize home health care workers

February 24th, 2015  |  Ron Miller

In the wake of the Supreme Court’s decision in Harris v. Quinn, individual home health care providers in Washington who did not wish to join a union brought a class action suit challenging that state’s efforts. In Harris, the High Court held that that the imposition of involuntary “agency fee” payments to unions in lieu of equivalent union membership dues was a violation of the First Amendment rights of Illinois home health care providers who were deemed employees solely for the purpose of collective bargaining. The relationship between the state, the union, and the home health care providers Centeno v. Quigley resembled the statutory scheme assessed in Harris.

In Centano, the question presented was whether the Washington’s alteration in its practice in response to Harris—an opt-out as opposed to opt-in system for the imposition of the agency fee-type payments prescribed by the Washington statute—was as unconstitutional as the involuntary system struck down in Harris. The plaintiffs moved for summary judgment on their request for a declaratory judgment that Washington’s statutory scheme and the collective bargaining agreement (CBA) between the state and the union was unconstitutional, or in the alternative, a preliminary injunction preventing the state from making payroll deductions with respect to home health care providers who had not affirmatively indicated their wish to join the union.

“One-way intervention” rule. As a threshold argument, both the state and the union asserted that the “one-way intervention” rule embodied by the notice provision in FRCP 23(c)(2) precluded a judgment on the merits of a class action prior to class certification. The rule is intended to prevent putative class members from waiting to intervene until a favorable merits determination has taken place, thus preventing multiple opportunistic class actions and safeguarding judicial economy. This rule, if applicable, would prevent adjudication of the plaintiffs’ summary judgment claim but not the claim for a preliminary injunction.

Here, the court concluded that summary judgment on the plaintiffs’ request for declaratory relief would be a favorable adjudication on the merits of a central component of the claim for class-wide relief, and the one-way intervention rule applied. The summary judgment motion was premature prior to class certification and was denied.

Preliminary injunction. With respect to the plaintiffs’ request for a preliminary injunction, the court noted that “a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” However, the defendants argued that the plaintiffs were not currently experiencing injury because the state had ceased making deductions from their pay and that the plaintiffs were not entitled to seek a preliminary injunction on behalf of the absent class under Ninth Circuit precedent. Finding that the defendants were correct, the court concluded that the plaintiffs were not presently suffering the personal injury that might justify a preliminary injunction.

Minnesota case. Homecare providers challenging the constitutionality of Minnesota’s Individual Providers of Direct Support Servicers Representation Act (IPDSSRA), saw their suit tossed out on motions to dismiss filed by the Minnesota Governor and the SEIU, the union certified as exclusive representative for homecare providers. Finding that the plaintiffs failed to state a claim of NLRA preemption, a federal district court in Minnesota ruled in Greene v. Minnesota Governor Mark Dayton, that the defendants were justified in their actions in implementing and enforcing the IPDSSRA.

Like the plaintiffs in Centano, the plaintiffs here challenged constitutionality of the IPDSSRA, which provides that homecare providers are state employees for purposes of Minnesota’s Public Employment Labor Relations Act (PELRA), but not other purposes. That is they were granted the right to union representation.

Under the PELRA, public employees have “the right by secret ballot to designate an exclusive representative to negotiate . . . the terms and conditions of employment with their employer.” Once a union is certified under PELRA, the public employer “has an obligation to meet and negotiate in good faith with the exclusive representative . . . regarding . . . the terms and conditions of employment.” If a union is certified under PELRA, the employees in the bargaining unit are not required to become members of the union.

NLRA preemption. On August 26, 2014, the SEIU was certified as the exclusive representative for homecare providers. After the plaintiffs failed in their initial attempt to have the election ballots impounded, they filed an amended complaint asserting three counts: (1) preemption under the NLRA; (2) tortious interference with employment; and (3) violation of the Contracts Clauses of the United States and Minnesota Constitutions.

Injunction decision. In denying the plaintiffs’ motion for preliminary injunctive relief, the court analyzed whether the NLRA preempts the IPDSSRA under both the Garmon and Machinist standard. Sections 7 and 8 of the NLRA only give rights to those classified as “employees” by the statute. Individuals employed “in the domestic service of any family or person at his home,” are excluded from the definition of “employee.” In Harris the Supreme Court referred to Illinois’ homecare providers as “personal assistants,” and reaffirmed that they are not covered by the NLRA. Because homecare providers are excluded from NLRA coverage through the domestic services exclusion, the court concluded that Garmon preemption does not apply. Under the Machinist standard, the court held that “there is no indication that Congress intended the area of domestic services to be free from all regulation.” Accordingly, the Greene court held that the plaintiffs were unlikely to succeed under the Machinist preemption standard.