Proposal 4 establishes a collective bargaining relationship between the MQHCC and a union or unions representing in-home caregivers. In-home caregivers would be considered “public employees” and the union a public-sector union, though Proposal 4 also stipulates that in-home caregivers “shall not, as a consequence of this [provision of Proposal 4], be considered public or State employees for any other purpose, nor be entitled to any other legal benefit reserved to such employees.”
In-home caregivers are not currently considered public employees under state law. They were, however, unionized as public employees in 2005 by the Michigan Employment Relations Commission through a process whose legality is under dispute.[*] A federal court has issued a preliminary injunction which permits the continuing collection of union dues and agency fees by the Service Employees International Union[†] pending the final outcome of the union’s federal lawsuit alleging that any failure to withhold dues would be an unconstitutional breach of the existing union contract.
The 2005 unionization of in-home caregivers occurred in an unusual manner. The certification of a labor union as the exclusive collective bargaining representative for a group of employees occurs through different procedures depending on who the employer is. Certification is a necessary prerequisite to creating any union that an employer will be legally required to bargain with collectively.
The federal National Labor Relations Board certifies larger private-sector unions, and it therefore certifies most private-sector unions. The NLRB does not, however, certify public employees of the states; only state governments do this.
In Michigan, the Civil Service Commission has responsibility for certifying unions of state government employees. All other public employee unions, such as those for municipal employees, are certified by the Michigan Employment Relations Commission.[‡]
In 2005, the Michigan Employment Relations Commission certified the SEIU as the union that would collectively bargain on behalf of Michigan’s in-home caregivers. The MQC3, however, presented itself as a public employer, and in-home caregivers did not appear to be public employees under Michigan law.[§]
The MQC3 was created through an “interlocal agreement.” Interlocal agreements are provided for in Michigan’s constitution and have been codified as part of the Urban Cooperation Act of 1967. Article 7, Section 28, of the Michigan Constitution provides the specific language:
[T]wo or more counties, townships, cities, villages or districts, or any combination thereof among other things to: enter into contractual undertakings or agreements with one another or with the state … for the joint administration of any of the functions or powers which each would have the power to perform separately. …
An interlocal agreement therefore requires the involvement of at least two local governments. These agreements are intended to “find solutions to metropolitan problems.”[¶] For instance, Dexter Township, the Village of Dexter, Scio Township and Webster Township have recently been negotiating an interlocal agreement to provide fire services for all four municipalities.
In the creation of the MQC3, the interlocal agreement was reached between the Michigan Department of Community Health and the Tri-County Aging Consortium, an agency that had previously focused exclusively on the elderly in Clinton, Ingham and Eaton counties. The interlocal agreement was statewide in its scope.
The DCH entered into this interlocal agreement in 2004. Through this agreement, the MQC3 purportedly had “the right to bargain collectively and enter into agreements with labor organizations. The [MQC3] shall fulfill its responsibilities as a public employer … with respect to all its employees.” This agreement also, however, recognized that the caregiver was under the exclusive control of the care recipient, not the MQC3, by acknowledging “the Consumers’ exclusive right to select, direct, and remove the Provider who renders Personal Assistance Services to that Consumer.”
The MQC3 did not exercise control over the terms and conditions of employment for its ostensible employees. It did not hire or fire the caregivers, and it did not handle their payroll.
With the creation of the MQC3 and its purported power under the interlocal agreement to collectively bargain as the public employer of the in-home caregivers, a union representing in-home caregivers had an entity to “bargain” with. In January 2005, the MQC3 and the SEIU presented a petition to MERC seeking certification of the union as the representative of the in-home caregivers.
The petition stated that both the MQC3 and the SEIU consented to MERC’s “jurisdiction” over the matter. MERC then ran a mail vote among in-home caregivers to approve the SEIU as their representative union. The proposed bargaining unit was to comprise all 41,000 in-home caregivers in Michigan. The election received an approximate 19 percent response rate — 6,949 voted in favor of unionization, and 1,007 were opposed. The majority of caregivers, approximately 33,000, did not respond. On April 19, 2005, MERC certified the SEIU as the collective bargaining agent for in-home caregivers.
Once the union representation was official, SEIU and the MCQ3 entered into a collective bargaining agreement that permitted the union to collect “union dues” and “agency fees”[**] from the checks sent by the DCH to in-home caregivers on behalf of the disabled adults in the Home Help Program. Starting in October 2006, the putative dues and fees were automatically deducted from the paychecks of all the in-home caregivers in the program. These dues and fees have since ranged from 2.5 percent to 2.75 percent of the caregivers’ checks. As of September 2012, the SEIU had collected more than $32 million in dues and agency fees.