There has been much discussion in the past months about the National Labor Relations Board’s decision in Specialty Healthcare
, 357 NLRB No. 83 (2011), and its possible implications for certification of smaller “micro” bargaining units in the private sector. (For more information read: National Labor Relations Board Starts New Year with Full Board Membership Following Aggressive Recent History: But Will It Last?
; NLRB Alert: Expansion of Protections for Non-Union Employees
). In the wake of that decision, the Missouri Western District Court of Appeals recently took a giant step in the other direction, handing down a ruling clearing the last obstacles standing in the way of the certification of a very large bargaining unit of Missouri public employees.
As a result of the appeals court’s May 1, 2012 decision in Degraffenreid, et al. v. State Board of Mediation, et al
., 13,000 personal care attendants across the state now will be represented by a single union. After a three-year court battle, the appeals court ruled that the state must certify the unionization vote of thousands of state-paid contractors seeking representation by a single entity for collective bargaining with state authorities. The Missouri Home Care Union—a partnership between the American Federation of State County and Municipal Employees (AFSCME) Council 72 and the Service Employees International Union (SEIU)—will represent the workers.
The contractors work in home health care as personal care attendants through a state run program for Medicaid-eligible disabled individuals. The Missouri Quality Home Care Act (“Proposition B”) gave the workers the power to form a Union. It specified that the personal care attendants, for purposes of collective bargaining, are employees of a new public entity, the Missouri Quality Home Care Council (“the Council”). The Council is a “public body” and the personal care attendants are “employees” of the Council for collective bargaining purposes.
The Council consists of eleven members. Six are to be current or former recipients of personal care services. Others are to be representatives of the Missouri Department of Health and Social Services (“DHSS”), the Missouri Centers for Independent Living, the Governor’s Council on Disabilities and the Governor’s Advisory Council on Aging.
Privately owned businesses from around the state, referred to as “vendors,” serve the home health care program in various ways, including, among other things, recruiting and screening applicants, handling payroll for the care attendants, and performing other administrative work related to the care attendants and the consumers. Although the vendors have a financial interest in the issue of collective bargaining with the care attendants, Proposition B did not provide for any direct representation of vendors on the Council.
After the passage of Proposition B, the newly formed Missouri Home Care Union filed a petition to represent the personal care attendants. The workers cast their first vote to join the Union in 2009. Eighty-five percent of workers voted for representation. Subsequently, a judge granted a challenge to the election brought by a group of personal care attendants and a vendor. The court blocked certification of the ballots but agreed to the Union’s request for a second election.
The Missouri Home Care Union prevailed by 680 votes during the second election. Some 2,600 personal care attendants who missed the cut-off date of voting eligibility challenged the election as having been conducted in violation of law and constitutional provision. The lower court enjoined
the Board from certifying the election in favor of the Union. It found that the Board was required to formally promulgate rules of procedure for the conduct of mail-in elections, but had failed to do so.
The Board and the Union challenged the lower court’s ruling. The appeals court reversed, holding that the Board did not violate any rule-making requirements, and remanded the case to the trial court with directions to order certification of the election results. Because of the court’s ruling, thousands of workers across the state will now be represented by a single union.
The appeals court did not address the fact that the vendors, despite having a financial interest in whether care attendants are allowed to collectively bargain, are excluded from the Council. That the legislature entirely ignored the individual vendors’ interests in passing Proposition B is significant, because the vendors will be significantly affected by collective bargaining negotiations that occur.
The AFSCME and SEIU praise the decision as a landmark legal victory that will give the providers strength in numbers to negotiate for improvements to the home health care program. However, the Missouri Chamber of Commerce and Industry has been concerned about the Quality Home Care Act from the beginning “because of its potential to greatly increase health care costs for state and private providers.” According to the President and CEO of the Missouri Chamber, the underlying intent of the legislation “is to ease the union organizing process for personal care attendants in Missouri and to open the door for infiltration into other sectors of the health care industry and potentially the rest of Missouri’s business community.”
to read the appellate court's decision.