dissent">CHIEF JUSTICE SAYLOR, Dissenting

According to the majority, the Governor's executive order concerning home care services per the participant-directed model "contains none of the hallmarks of collective bargaining." Majority Opinion, at 1189. Yet, the majority otherwise recognizes that the executive order "uses some similar concepts to those found in labor statutes[.]" Id. at 1187. Indeed, the executive order has been the predicate for the advertisement and conduct of a "union election" by a labor organization soliciting home care attendants' membership and paycheck deductions of dues subsidized by governmental assistance monies. R.R. at 3498a, 3504a-3505a, 3528.

In approving the executive order as a valid exercise of gubernatorial authority in the form of a mere "instruction from Governor Wolf to subordinate officials," Majority Opinion, at 1184, the majority relies substantially on the character of the executive order as being "voluntary, non-binding, non-exclusive, and unenforceable," id. at 1184-85. To me, the latter observations are relatively beside the point. In my view, *1196the Governor's social policy initiative -- particularly in a regulated arena involving the payment of government funds to secure home care services, see 62 P.S. § 3051 - 3058 (the Attendant Care Services Act) -- represents too great a foray into legislative prerogatives to be considered anything less than a legislative act. See Pa. Const., art. II § 1 ("The legislative power of this Commonwealth shall be vested in [the] General Assembly[.]").1 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.

For these reasons, I would affirm the decision of the Commonwealth Court.

I also find Section 4 pertaining to the Direct Care Worker List flawed but refrain from additional commentary based on the Majority's remand for proceedings in the Commonwealth Court.

JUSTICE MUNDY, Dissenting

I join Chief Justice Saylor's dissenting opinion in full. I would affirm the Commonwealth Court's grant of summary relief invalidating Sections 3 and 4 of Executive Order 2015-05 (Executive Order). I recognize it is a justifiable goal of the Executive Branch to collect information to best serve the needs and welfare of the citizens of the Commonwealth. For that reason, I agree with the Commonwealth Court that the Governor's Advocacy Group on Participant-Directed Home Care created by Section 2 of the Executive Order is within the scope of the Executive Branch's power and serves a legitimate purpose. However, the Direct Care Worker Representative Election Process, Meet and Confer Process, and Memorandum of Mutual Understanding subsections memorialized in Section 3 create an employment relationship between DCWs and the Commonwealth.1

DCWs are hired directly by the participants and are not subordinates of the Executive Branch. Under Section 3, a Direct Care Worker Representative is designated through an election conducted by the American Arbitration Association and tasked with meeting on a monthly basis with The Secretary of Human Services and the Deputy Secretary of Human Services for Long Term Living. Section 3(b)(2)(a)-(h) discusses the issues that "shall" be discussed including, inter alia , recruitment and retention of qualified DCWs, standards for compensating DCWs including wage ranges, health care benefits, retirement benefits and paid time off. Section 3(c)(1) then states "mutual understandings reached ... shall be reduced to writing." Executive Order, § 3(c)(1). In addition, the section states "[w]here appropriate ... understandings reached ... will be implemented *1197as the policy of the Department related to Direct Care Workers providing Participant-Directed Services." Id. Recognizing the aforementioned language in Section 3 was analogous to language in the Pennsylvania Labor Relations Act and Pennsylvania Employe Relations Act, the Commonwealth Court concluded the Section 3 directives amounted to collective bargaining. I am compelled to agree. Despite the Majority's conclusion, Section 3 is not a "voluntary discussion process." Majority Op. at 118. It is a mandated process for electing and conferring with one purportedly representative designee regarding policy considerations implicating all DCWs.2

Appellants contends that it would be misguided for this Court to invalidate an executive order on the basis that it "looks too much like 'legislation.' " Reply Brief for Appellants at 2. I respectfully disagree, however, that the separation-of-powers doctrine should be interpreted to permit any branch of government to operate freely within another sphere (or at least freely to the point of a bright-line conflict), subject only to the technical unenforceability of such operations in a court of law. To me, the fact the executive order in issue looks like legislation is highly relevant here. Indeed, and as otherwise noted, certainly private actors in the present context have relied on such appearances in furtherance of their own undertakings.

The Majority disputes this conclusion asserting the Executive Order does not contain "the hallmarks of collective bargaining[.]" Majority Op. at 1189. I respectfully disagree. For example, the first hallmark listed by the Majority in support of this averment is the absence of an exclusive bargaining representative. Nevertheless, the Order explicitly states, "There shall only be one Direct Care Worker Representative recognized at any time." Executive Order § 3(a)(3). Accordingly, there is a de facto exclusive bargaining representative.

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