Oral Argument Next Week in Lawsuit Appeal Affecting 20,000 Pennsylvanians

Contact: Conner Drigotas, 844.293.1001, cddrigotas@fairnesscenter.org

November 21, 2017, HARRISBURG, Pa.—Should a union dictate how parents care for disabled children at home? Can the governor circumvent the state Legislature and make law benefitting a special interest and campaign contributor?

Last year, Pennsylvania’s Commonwealth Court answered a resounding “no” to both questions, overturning Gov. Tom Wolf’s 2015 executive order which would have forced unionization on 20,000 home care workers and delivered up to $8 million in annual dues to a union backed by SEIU and AFSCME—two of Wolf’s major campaign contributors. The Wolf administration appealed the Commonwealth Court’s decision to the state Supreme Court, which will hear oral argument one week from today.

Oral argument on Wolf’s appeal is scheduled for 9:00 am on Tuesday, November 28, at the Harrisburg Supreme Court Courtroom.

The Fairness Center will argue on behalf of its clients Dave Smith, who is homebound with muscular dystrophy, and Don Lambrecht, Dave’s in-home care provider of 25 years, who successfully sued to block Wolf’s executive order in 2015.

“Dave and Don look forward to finally ending Gov. Wolf’s unconstitutional attempt to disrupt their deeply personal working arrangement,” commented David Osborne, president and general counsel for the Fairness Center. “Many of Pennsylvania’s 20,000 home care workers are family members or close friends who neither need nor want union interference in their daily lives. Unfortunately, Gov. Wolf remains adamant in helping his union campaign donors capture millions of dollars in dues money at home care workers’ expense and in violation of the law.”

In overturning Wolf’s executive order, the Commonwealth Court stated in its decision in J. Markham v. Wolf (a similar case argued concurrently with the Fairness Center’s clients’ case):

“[T]he Executive Order is de facto legislation, with provisions contrary to the existing statutory scheme. At its core, the Executive Order invades the relationship between a [Direct Care Worker] and the employer participant who receives personal services in his or her home.”

The Commonwealth Court entered a permanent injunction of Wolf’s order, which is in effect until Wolf’s appeal is resolved by the state Supreme Court. Undeterred by the injunction, Wolf and SEIU quickly implemented a scheme to sidestep the court’s ruling and funnel $1.25 million to a new organization created by the SEIU. The Wolf-SEIU scheme required all new home care workers to attend an orientation program and be introduced to a union representative.

In July of 2017, Dave and Don petitioned the court to enforce its injunction and block the scheme, since it contained elements of Wolf’s original executive order. In an August hearing, the governor’s counsel called the provision requiring a union introduction a “mistake,” stating, “[T]hat [the provision], of course, would violate the injunction. Absolutely crystal clear on that. We don’t dispute that at all.”

The Wolf administration quickly backed off and agreed to suspend the orientation program, pending the state Supreme Court’s decision on the underlying case.

“Last year, the Commonwealth Court ruled that Wolf’s executive order intruded on the private employment relationships of thousands of Pennsylvanians and that Gov. Wolf exceeded his constitutional authority,” continued Osborne. “We are confident the Supreme Court will reach the same conclusion. Our clients’ private employment arrangement should be protected, not abused to benefit union leaders.”

Case Timeline

  • February 2015: Gov. Wolf issues an executive order enabling the unionization of up to 20,000 home care workers. This would have enabled an SEIU-backed union to siphon millions of dollars in annual dues from home care workers.
  • April 2015: The Fairness Center’s clients Dave Smith, who is homebound with muscular dystrophy and receives in-home care, and Don Lambrecht, Dave’s home care provider for 25 years, file suit in Commonwealth Court and requests emergency relief to stop the unionization scheme. The Commonwealth Court issues a preliminary injunction preventing Wolf from further implementing the executive order.
  • October 2016: The Commonwealth Court invalidates Wolf’s order. Wolf appeals the Commonwealth Court’s ruling to the Pennsylvania Supreme Court.
  • November 2016: The Commonwealth Court enjoins Wolf during his appeal to the Pennsylvania Supreme Court from implementing the executive order or anything in accordance with it.
  • Early 2017: The Wolf administration and an SEIU-created nonprofit agree to a mandatory home care worker orientation program as envisioned by the executive order.
  • July 2017: The Fairness Center’s clients petition the Commonwealth Court to enforce its permanent injunction and end the orientation program.
  • October 2017: The Wolf administration agrees to suspend the orientation program pending the state Supreme Court’s decision.
  • November 28, 2017: Oral Argument to be held before the state Supreme Court on Wolf’s appeal of the Commonwealth Court’s October 2016 decision.

Case documents

David Osborne is available for comment today. Please contact Conner Drigotas, 844.293.1001, cddrigotas@fairnesscenter.org to schedule an interview.

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The Fairness Center is a nonprofit, public interest law firm offering free legal services to those facing unjust treatment from public employee union officials. For more information visit www.FairnessCenter.org.