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Opponents of a proposed unionization of certain in-home childcare providers will take their case to federal court alongside a challenge in Ramsey County.

Childcare unionization opponents take case to federal courts

Opponents of a move to unionize certain in-home childcare providers in Minnesota are taking their case to federal court while they wait for a  judge to rule on a parallel suit in Ramsey County.

A group of providers will file a federal suit as soon as Thursday, arguing that a move to hold a unionization election in which some providers would not be able to vote, and potentially lead them to be represented by a union they don’t want to be a part of, violates their First Amendment rights. In a statement released by the Freedom Foundation of Minnesota, the group says it’s receiving legal aid from the National Right to Work Foundation as well.

“We wish we didn’t have to be in this position to begin with,” Jennifer Parrish, a child care provider from Rochester, said in the statement. “But since we were put in this position we do believe that this violates our first amendment rights and we intend to argue that in court.”

The latest legal challenge comes while supporters and opponents alike are awaiting a decision on a suit currently in Ramsey County court. Late last year, a judge issued a temporary injunction on a unionization election that had been scheduled to take place in December. A follow-up hearing — after the Dayton administration decided, with limited other legal options, to challenge the initial ruling — was originally scheduled for next week. That was delayed, though, and now the judge is expected to issue a final ruling in February.

On Thursday, GOP activist Harry Niska filed an amicus brief (pdf) in the Ramsey County suit on behalf of 13 customers also opposing the unionization.

At the heart of the matter is a question of whether providers should be allowed to join a union, in this case AFSCME and SEIU. Because of the awkward legal status of providers — a hybrid of employers, employees, contractors and small businesses — such a move requires a change in state policy. At the state level, the arguments have centered around executive authority and labor statutes. With this federal suit, opponents will look to make a constitutional argument.

Opponents say by limiting the election to 4,300 providers out of 11,000 total statewide — ballots are being sent only to those providers who have received state subsidy payments in the past 12 months — their rights are being violated. It’s this contention that’s key to the latest, federal legal challenge.

“The allegation is going to be that it’s unconstitutional,” Bill Messenger, an attorney with the National Right to Work Foundation who’s working on the case, said in the statement. “The first amendment guarantees everyone the right to choose with whom they associate to petition government and that the government can’t choose who’s going to represent providers for lobbying the state.”

Providers worry that unionization would pave the way for a single lobbying force at the Capitol dominated by labor and drowning out independent providers, especially those who don’t receive state subsidies but still might be affected by the unionization if it were to go forward.

“It’s something we feel very passionate about. We would like to be able to choose who represents us or we’d like to represent ourselves,” Parrish, the provider, said in the statement. “We don’t want anybody speaking on our behalf to our legislators at the Capitol or lobbying on our behalf, especially when they’ve shown their interests can be very different from our interests.”

Last fall, Gov. Mark Dayton issued an executive order clearing the way for a unionization election. Some argue that alone represented executive overreach. That aspect — along with accusations that it represented a political gift to unions that heavily backed Dayton’s election effort — have made the issue a hotly debated one at the Capitol both in terms of policy and politics. The Senate moved to join the Ramsey County suit in support of the unionization opponents, and conservative lawmakers like Senate State Government Committee Chairman Mike Parry have had hearings scrutinizing the unionization effort.

Minnesota is hardly the first state to tackle the issue of childcare unionization, and locally AFSCME and the SEIU have been working for years to build support. In other states, teachers’ and communications workers unions have joined the cause; in Michigan, the United Auto Workers was involved in the push.

Dayton and union backers claim that similar actions in other states offer sufficient precedent. At least 12 others have moved toward childcare unionization.

But in some instances, the legal fights have dragged on: The National Right to Work Legal Defense Foundation late last year filed an appeal to the U.S. Supreme Court over a case in Illinois. In Michigan, the battle dragged on until the state’s new Republican governor, Rick Snyder, dissolved a previous agreement and unions settled. In Maryland, a suit was eventually withdrawn.

In Minnesota’s case, the initial suit in Ramsey County is set to be resolved about a month into a legislative session that’s expected to be marked by job creation proposals, constitutional amendments and bonding bill politics. Some expect a right-to-work constitutional amendment will be carried by Republicans. That move, along with a potentially ongoing childcare unionization fight, would like invite not only DFL criticism but likely severe backlash from organized labor as well.

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