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Lawsuit will challenge home daycare, PCA unionization

Mike Mullen//May 28, 2013//

Lawsuit will challenge home daycare, PCA unionization

Mike Mullen//May 28, 2013//

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Bill authors Rep. Mike Nelson and Sen. Sandy Pappas after House passage of the unionization bill. (Staff photo: Peter Bartz-Gallagher)

Legislation that would allow home daycare operators and personal care assistants (PCAs) to organize union elections was just signed into law by Gov. Mark Dayton last Friday, but opponents are already filing a lawsuit to block the new law’s implementation. The lawsuit intended to halt an effort to unionize caregivers will be filed tomorrow on behalf of opponents to the controversial new statute. Conservative advocacy group Minnesota Majority is holding a 10:30 a.m. press conference at the State Office Building to announce the lawsuit’s filing.

Attorney Doug Seaton is expected to be on hand for tomorrow’s announcement, and will serve as lead counsel on the lawsuit. In 2011, Seaton successfully brought a suit against Dayton’s executive order which would’ve allowed daycare operators to take steps to unionize. The order was stricken by a spring 2012 decision from a Ramsey County District Court Judge, who ruled that Dayton had overstepped his executive authority. Following last year’s election, union organizers lobbied to get the proposal enacted through the legislative process. The bill ultimately passed late in the session, though just barely, and only after marathon debate sessions in both the Senate and House.

Under the terms of the legislation, organizers from SEIU Healthcare, which would gain the rights to unionize PCAs, and AFSCME, which would organize daycare workers, would each have to collect signatures from 500 care workers as a first step toward holding elections. After crossing that threshold, the unions would gain access to state-held lists of care workers, which could be used to gain signatures of 30 percent of effected workers, at which point the organizations could call for an election to unionize.

Earlier this month, as the bill’s fate was still pending, Seaton sent a letter to legislative leadership outlining legal issues that he wrote would invalidate the move to unionize daycare operators. In his letter, Seaton argued that enacting the law would bring the state into conflict with the National Labor Relations Act (NLRA), which is meant to supersede any state or local action.

“The proposed legislation is squarely preempted by federal law,” Seaton wrote.

In a later passage, Seaton challenged the bill’s assertion that childcare providers should be treated as public employees.

“The family child care providers affected by the proposed legislation can only be properly categorized as private sector employees under the NLRA, and cannot be converted to ‘public employees,’ as the bill does, simply by saying so,” Seaton wrote.

The letter also points out that the plaintiffs in the lawsuit against Dayton’s executive order had been awarded attorneys’ fees, thanks to an April ruling from the Minnesota Court of Appeals. If successful in their challenge to this legislation, the bill’s opponents plan to again seek an award of attorney’s fees.

The suit amounts to something of a reunion for the groups which have opposed the unionization push for years, with Minnesota Majority’s Dan McGrath saying he was working to connect with participants who previously banded together to form a single-issue group called Childcare Freedom. As originally constituted, that group included Minnesota Majority, the Minnesota Family Council, the Minnesota Free Market Institute and the National Federation of Independent Businesses. McGrath said plaintiffs were still working out who would foot the bill for the upcoming legal fees, saying leftover attorney’s fees from the original lawsuit could be used, with additional funding to come from a “variety of sources.”

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