Foster Homes Unionized
Question: When is an employer an employee to be unionized?
Answer: When the Oregon Legislature says so!
Why? To repay the union movement for its help in electing a Democratic Governor and Legislature in 2006.
How? By passing Senate Bill 858 declaring Oregon's 1700+ once independent adult foster home providers to be employees of the state ready to be unionized in collective bargaining status vs the Oregon Department of Administrative Services. These adult foster home operators, mind you, are actually employers who operate, and take all the responsibilities for, their small businesses--some of them have for decades.
With what method? By avoiding having to win an election as normally required by the National Labor Relations Board.
Sound improbable? It is. Despite resolute opposition from the Independent Adult Foster Home Assn., the '07 Oregon Legislature, as one of its last acts, passed SB 858 after it had stalled in the Senate Rules Committee about May 15, where its three to two Democratic majority was not getting that three votes to pass it out.
What happened to break the deadlock? On May 23, representatives of the SEIU (Service Employees Union Local 503) went to the ERB (Employment Relations Board) which handles state employee representation elections. They asked that union representation cards signed by foster home operators in 2006 and early '07 be counted toward certifying SEIU as bargaining agent. The Governor asked ERB to go ahead. ERB certified that a majority of owners had signed, indicating they wanted SEIU to represent them. SEIU took the cards away. Grover Simmons reports that many providers were tricked into signing. "They clearly do not want their signature to be used in a 'card check' procedure where they give up the right to vote against SEIU 503."
The Governor then issued an Executive Order declaring SEIU to represent the adult home operators and to bargain with the Department of Human Services (not Administrative Services). A substantial portion of the adult foster home operators' funding comes through the state through the Department of Human Services.
However, on June 22 Senate Rules did forward the bill, three to two, to the Senate floor.
What had happened? Senator Monnes-Anderson (a Democrat opposed to the bill) was absent. Senator Betsy Johnson (D) had already been removed from the committee and replaced.. Senate President Peter Courtney (D) chose to sit in for Monnes-Anderson. That gave the pros their three to two majority. The bill passed the Senate and went to House Rules, thence to the House floor where it was among the last bills passed.
What about those cards? The overwhelming majority of these tiny adult foster homes are operated by Romanians who fled the Iron Curtain. Having lived under a totalitarian Communist government, when someone who appears to be from the government asks them to sign, THEY SIGN!
Is the act legal? Probably not. Likely it infringes upon the Commerce and Supremacy Clauses of federal law. Therefore, the National Labor Relations Board can be expected to step in both against the statute SB 585, and against the Governor's executive order.
What could happen? Les Smith, a management and labor relations attorney with Bullard, Smith, Jernstedt & Wilson, retained by the Adult Foster Homes Assn., foresees this agenda: A court action will take place designed to stop enforcement of the measure against those adult foster home operators who are in interstate commerce because of its infringement on Commerce and Supremacy. Being in Interstate Commerce is defined as doing $50,000 worth of business a year with firms substantially in interstate commerce. For example, acquiring a van to transport people, buying food or other supplies produced by large firms, a TV, etc. probably will put nearly all adult home operators over that $50,000 mark. Under federal law a determination as to which foster home operators are in Interstate Commerce cannot be made either by Department of Administrative Services or Department of Human Resources.
How can being unionized help the adult foster home operators? Reportedly, the SEIU received several million from the '07 legislature for training and safety programs out of the money allocated to the In Home Health Care Group. SEIU allegedly is seeking directly from amounts paid by the state large sums for training and safety for the adult foster homes. SEIU reportedly hopes to charge union dues equaling l.7% of foster home proceeds from these employers. These dues might exceed $150 per month, Grover Simmons, the Foster Home group's lobbyist, believes. In the end the adult foster care homes will get little or nothing and some will be forced to close their doors.
Meanwhile, those cards again! In the midst of the SB 858 controversy, the Legislature passed a bill which eliminates the right to a secret ballot election when a union is trying to establish a collective bargaining unit.
HB 2891 requires the Employment Relations Board to certify a union to represent employees if a majority of affected employees have signed cards authorizing it to bargain for them. This certification would occur without an election. Simmons maintains that many of the Romanian care giver home operators were lied to, harassed and tricked into signing cards. Many have asked for their signed cards to be returned to prevent their being counted "for" the SEIU as union but cannot get them. But HB 2891 prevents a simple "yes" or "no" vote in a secret election, Simmons charges.
What will happen? Les Smith maintains that SB 858 attempts to apply state regulatory policy to private sector businesses which are subject to NLRB (not state) law and to convert these employers into employees which, he believes, the state has no legal right to do. He states it interferes with the relationship between the adult foster care home owners and their employees, a group the unions also intend to represent..
Smith points out that Congress, through the Supremacy and Commerce clauses of the U.S. Constitution, has displaced state regulation in labor relations where it conflicts with established federal law that applies to all the states in the Union. The NLRB, he notes, has jurisdiction over all labor disputes which affect interstate commerce. Under NLRB rulings, nearly all businesses fall within that grouping which is designed to include business disputes with the POTENTIAL to be subject to federal regulation.
Smith adds, "In 35 years of practice in labor relations, I have never heard of a situation where a group of employers have been pulled together to become "employees" and find a union to bargain on their behalf." SB 858 is, he notes, "an attempt to impose state legislation and create a state mandated union employers association in a situation where the National Labor Relations and the NLRB have sole jurisdiction."