Gov. Dannel P. Malloy signed the legislation allowing home and daycare workers to collectively bargain into law on May 14, but the court battle over his two executive orders that set the law in motion continues.
Three lawsuits have been filed and consolidated in Superior Court alleging the governor overstepped his authority in issuing orders that the plaintiffs say amounts to the forced unionization of the groups.
Malloy’s executive orders created a pathway for the workers to form a union and both groups of workers have since voted to do so.
Earlier this month the state filed a motion to dismiss the lawsuits arguing that the orders fall “squarely within the governor’s constitutional and statutory authority.” And despite claiming “irreparable harm” the assistant attorney general who filed the motion to dismiss claims the plaintiffs waited a full six months after the order was signed to bring the lawsuit. It also claims the plaintiff, including daycare workers, personal care attendants, and clients, had time to convince lawmakers not to pass legislation essentially codifying the executive orders.
“Plaintiffs and others have exercised full-throated and unimpeded access to petition to legislature in opposition to these measures,” the motion to dismiss claims.
There also seems to be a disagreement between the two parties about what exactly the executive orders allowed the two groups of workers to do.
“So what does the order actually do? It establishes an efficient and lawful means for the governor to gather information and evaluate policy proposals concerning the administration of the state programs subject to his executive oversight authority—nothing more,” the state’s motion to dismiss alleges.
Joseph Summa, the attorney for the plaintiffs including Catherine Ludlum, a Manchester resident with spinal muscular atrophy who hires home care workers through the state waiver program, responded to the statement in his reply brief by asking if the state was kidding.
“Are they kidding? This proposition does not even pass the straight face test,” Summa wrote. “Even a cursory look at the provisions and likely impact of this executive order demonstrates both the duplicity and absurdity of this position.”
He said Ludlum is an employer and has been for the past 20 years.
“This is what she considers herself to be and what she would be considered legally under over a hundred years of common law and statutory precedent,“ Summa argues in his brief. He said Ludlum sets the hours, determines the pay, hires, fires, supervises, and directs the home care attendants. He also claims she was left out of the process set up by the executive orders to gather information about home care workers.
Summa, who was hired by the Yankee Institute, argues that executive order number 10 allowing home care workers to organize altered the fact that Ludlum is an employer and as such “has rights under either the National Labor Relations Act and/or the State Labor Relations Act.”
Furthermore, Summa argues that the process created by the working groups under the executive orders which allowed the workers to vote to form a union was flawed.
“There were widespread reports of intimidation, voting irregularities, lost ballots, and PCAs not getting ballots until after the election was over,“ Summa wrote. “It provided solely for mail ballots or card checks, neither of which are normally used in Federal NLRB or State Labor Board elections.“
Assistant Attorney General Jane Rosenberg argues in her motion to dismiss that the orders simply created a process for affected workers to designate a majority representative to provide the governor and executive branch officials with input, “albeit necessarily imperfectly, their majority view points.”
Rosenberg argues the executive order did not allow that majority representative to engage in collective bargaining.
Summa countered that it was collective bargaining.
“When a Majority Representative negotiates on behalf of a group of individuals, that is called ‘collective bargaining,’” Summa wrote. “If it swims like a duck, walks like a duck and quacks like a duck, it is a duck – even if the Defendants want to call it a turtle.”
Rosenberg argued the executive order established a working group charged with submitting a report to the governor and recommending methods to pursue collective bargaining rights in order to increase access and quality to state services, at the same time as “improving service providers’ working conditions.”
Rosenberg asks the court to dismiss the case because there is no relief the court can grant them based on their “lack of standing.” She argues the claims they make are barred by sovereign immunity and lack subject matter jurisdiction.
The two sides will meet in the courtroom on June 28.