Markham v. Wolf (2018)

Summary:

The Pennsylvania Supreme Court’s majority—Justices Todd, Baer, Donohue, Dougherty, and Wecht—held that then Gov. Tom Wolf’s executive order allowing a union to represent home care workers in negotiations with the commonwealth was not an unconstitutional exercise of gubernatorial authority. Instead, the executive order was construed as a purely voluntary measure that merely communicated policy directives to subordinate officials.

The Verdict:

The majority disregarded the text of Wolf’s executive order—which read just like legislation governing home care workers in at least ten other states—and allowed the governor to issue unconstitutional, de facto legislation. In doing so, the Pennsylvania Supreme Court upset the balance of power between the executive and legislative branches, setting the stage for future executive orders to force unionization on other partial public employees.

Background:

This case began in 2015, when Wolf issued an executive order entitled “Participant-Directed Home Care Services.” Among other provisions, the executive order established a complicated process that would allow a union to receive contact information for certain home care workers—specifically, those home care workers employed by those for whom they offer care under Medicaid and similar, state-funded programs—and gather support to become their exclusive representative in discussions with the commonwealth.

After becoming an exclusive representative, the union could negotiate terms and conditions of home care workers’ employment, despite the fact that the disabled and elderly individuals employing the home care workers had been given governing authority over these workers’ employment. The negotiated terms would be put in written form and, by the terms of the executive order, translated into binding rules and regulations.

The Commonwealth Court ruled against Wolf and permanently enjoined the executive order on the grounds that it exceeded his authority. It reasoned that the executive order had the character and effect of legislation, not merely a directive to subordinates, and instituted a collective bargaining relationship between individuals specifically precluded from bargaining under state and federal law.

The Pennsylvania Supreme Court reversed, interpreting the executive order to set up an entirely voluntary set of relationships, with any created rights entirely unenforceable. According to its reading, the executive order allowed for discussions between the Commonwealth and “stakeholders,” with no binding or enforceable results.

Dissenting Chief Justice Saylor and Justice Mundy argued that the governor’s “social policy initiative” embodied by the executive order had the force and effect of a statute—far more than just a communication to subordinate officials. Justice Mundy separately noted her belief that the executive order created a de facto collective bargaining regime.