A divided Pennsylvania Supreme Court has reversed a Commonwealth Court decision that struck down much of Gov. Tom Wolf's executive order creating a process for organizing home care workers.

The high court on Aug. 21 ruled 5-2 to vacate the lower court's ruling, rejecting its finding that Wolf's order improperly gave direct-care workers, referred to in the opinion as DCWs, the power to collectively bargain in contravention of the Pennsylvania Labor Relations Act and the Pennsylvania Employee Relations Act.

Wolf issued the executive order in February 2015, establishing an advisory group to manage the quality of long-term personal care services, and creating a process by which a representative of direct-care workers would be selected to meet with state officials to negotiate payment procedures and other working conditions.

A group led by direct-care worker Jessica Markham filed a petition for review in April 2015 asserting that the order established organizational labor rights for workers in conflict with the PLRA and the PERA. The Markham parties argued Wolf exceeded his powers as governor by issuing an executive order that was inconsistent with existing law. David W. Smith and Donald Lambrecht brought a similar, separate challenge to the executive order, seeking declaratory and injunctive relief to invalidate it.

Wolf argued that his executive order was a directive to a subordinate, for which the Pennsylvania Constitution provides.

The Commonwealth Court disagreed, saying sections three and four of Wolf's order surpassed a direction to subordinates, as it altered the employment relationship between direct-care workers and the people they work with, who are not subordinates of Wolf.

The Commonwealth Court also said the order in effect granted collective bargaining rights to direct-care workers, which they were not entitled to under the PLRA or PERA. The process also excluded the people those workers care for (referred to in the Supreme Court's opinion as participants), who are the actual employers, from the bargaining process, the court said.

But Justice Debra Todd, writing for the Supreme Court majority, said the executive order did not conflict with the PLRA or PERA “because it does not establish a system of collective bargaining, or indeed, create any legal rights at all.”

Instead, Todd said in the majority opinion, the executive order establishes a process that is “voluntary, nonbinding, nonexclusive and unenforceable.”

“The order contains none of the hallmarks of collective bargaining―an exclusive bargaining representative; the duty to bargain in good faith; the creation of an enforceable collective bargaining agreement; the right to engage in concerted activity; the right to file unfair labor practice charges; and the right to strike or arbitrate,” Todd said. “The absence of these (or any) rights confirms that the order does not constitute collective bargaining as provided for in current labor relations statutes. As such, the order does not legislate or trespass upon existing labor laws, but merely streamlines a voluntary discussion process.”

Todd was joined by Justices Max Baer, Christine Donohue, Kevin Dougherty and David Wecht.

Chief Justice Thomas Saylor and Justice Sallie Updyke Mundy both dissented.

In his dissenting opinion, Saylor, joined in full by Mundy, called Wolf's executive order “too great a foray into legislative prerogatives to be considered anything less than a legislative act.”

Saylor also took issue with the majority's acceptance of the government's argument that the executive order is a valid exercise of the governor's power to communicate policy directives to subordinate officials and the public.

“I also agree with appellees and their amici that the provisions of the executive order authorizing, inter alia―the election of a labor organization, the designation of the American Arbitration Association as an election monitor, the injection of the executive branch as an intermediary between the labor organization and consumer-employers, and the facilitation of terms and conditions agreements, which may be directed toward impacting the private work relationships between such consumer-employers and the home care providers―represent far more than simple communications with subordinate officials,” Saylor said.

Mundy also penned her own separate dissenting opinion, disputing the majority's position that the executive order merely established a “'voluntary discussion process.'”

“It is a mandated process for electing and conferring with one purportedly representative designee regarding policy considerations implicating all DCWs,” Mundy said.

James J. Kutz of Post & Schell in Harrisburg, who represented the Markham parties, said his clients “are very disappointed that the Commonwealth Court ruling was not affirmed, for the reasons set forth in the two dissenting opinions.”

David Osborne of The Fairness Center in Harrisburg, who represented Smith and Lambrecht, could not immediately be reached for comment.

In a statement issued by the governor's office on Aug. 21, Wolf called the decision “a victory for seniors, people with disabilities, and home care workers.”

“The court's decision affirms a key part of my plan to provide choices for seniors, improve home- and community-based care and attract more qualified home care attendants,” Wolf said in the statement.

The case is not completely over, however. The Supreme Court did remand to the Commonwealth Court a privacy dispute over the portion of the executive order that requires the Department of Human Services to provide potential representative organizations with the names, home addresses, telephone numbers and email addresses of DCWs and participants across the state.