Minnesota Lawyer
Supporters and opponents of a bill to allow daycare providers to vote on joining a union rallied outside the House chamber on Sunday, May 19. Since the bill’s enactment, opponents of unionization have filed a lawsuit, and at least one additional piece of litigation is expected. Meanwhile, AFSCME Council 5 and SEIU Healthcare Minnesota are gearing up to convince more than 20,000 workers across the state that unionizing is in their best interest. (Staff photo: Peter Bartz-Gallagher)
Legislation allowing day care providers and personal care assistants to join labor unions was arguably the most contentious issue of the legislative session. The proposal was debated for 27 hours on the House and Senate floors, longer than any other bill considered in 2013. Ultimately, the proposal cleared the House by the narrowest of margins, 68-66, on the final day of session.
But the debate at the Capitol merely sets the stage for a fight that is likely to go on for months, or possibly years. That’s in part because — as union proponents repeatedly stressed — the legislation merely allows workers the right to vote on whether they want to be represented by a union. Opponents of that organizing effort have, as promised, already filed a lawsuit. And at least one additional piece of litigation is expected.
The two unions that spearheaded the legislative fight — AFSCME Council 5 and SEIU Healthcare Minnesota – are now gearing up to convince more than 20,000 workers across the state that unionizing is in their best interest. AFSCME is seeking to organize day care providers, while SEIU is focused on personal care assistants (PCAs).
There are two thresholds that the unions will have to meet before an election can be held. For starters, the unions need to collect 500 signatures, within a six-month period, indicating support for collective bargaining. That will allow them access to a state-created list of workers potentially eligible for unionization. Then, if AFSCME or SEIU can provide proof that at least 30 percent of potential bargaining unit members want to seek union representation, a mail-in election will be held. If a majority of those voting indicate support, the union would be authorized to bargain on behalf of all eligible workers. The unions have a four-year window once the legislation is implemented on July 1 to complete the process.
Jennifer Munt, AFSCME Council 5’s director of public affairs, says that the union will have about 100 canvassers across the state collecting cards from day care providers indicating support for union representation. If ultimately successful, the organizing drive would culminate eight years of organizing child care providers.
“I don’t think it will be difficult for us to present 500 cards,” Munt said. “We’ve signed up majorities twice in the past and we are confident we can do that again.”
Litigation forthcoming
But AFSCME and SEIU aren’t the only ones gearing up for the next stage of the fight. On Wednesday, a group of 11 day care providers filed suit in U.S. District Court arguing that the legislation runs afoul of federal labor laws and violates the equal protection clause of the U.S. Constitution. They want the court to halt enforcement of the law and declare it unconstitutional.
“Lumping small businesses together and having them represented by a union is simply not allowed by federal labor law,” said Douglas Seaton, the attorney representing the providers. “We’re confident the federal court will see this issue the way we see it.”
But Munt says that litigation in other states that have authorized day care providers to organize hasn’t succeeded in thwarting those efforts. “The opponents, they’ve sued before. Now it’s time to exercise our democratic right to vote,” Munt said.
This will not be the first time the issue has been aired in the courts. In 2011 child care providers sued after Gov. Mark Dayton issued an executive order authorizing an election. In April 2012, a Ramsey County District Judge sided with the plaintiffs, ruling that Dayton had overstepped his executive authority and ordering the state to pay their legal fees.
Seaton points out that the earlier lawsuit also raised the argument that authorizing day care providers to unionize violates federal labor laws. However, it was tossed out before the judge ever ruled on that particular argument.
“We haven’t been playing hide-the-ball about this,” Seaton said. “We’ve raise this issue all along.”
That’s not the only litigation forthcoming. William L. Messenger, an attorney with the National Right to Work Legal Foundation, says that he will file an additional lawsuit next week in federal court on behalf of child care providers arguing that the legislation violates their first amendment rights of free association. “The bottom line is, the government can’t force someone to associate with a group against its will unless it has a compelling state interest to do so,” Messenger said.
While that lawsuit will only deal with day care workers, Messenger indicated that there may be a subsequent case challenging the handling of PCAs on similar grounds. “Whether or not PCAs bring a case in the future is undetermined,” he said.
Eyes on 2014
The issue will also remain campaign grist heading into the 2014 elections, when Dayton and House members will be up for re-election. AFSCME and SEIU are among the most politically active unions in the state. In 2012, the political funds of each union contributed roughly $800,000 to DFL candidates and causes.
Munt couched it in terms of the national landscape, which has seen bitter defeats for organized labor in states like Wisconsin and Michigan in recent years. “I think we changed the course of history,” Munt said. “While workers in other states are losing their rights, we won the largest expansion of collective bargaining in Minnesota in 40 years.”
But even before the day care and PCA unionization bill passed, Republicans frequently portrayed DFLers as beholden to their political allies in organized labor. They’re anxious to highlight the bill’s passage as further evidence of that dependency.
“This is one of the prime examples of Democrat overreach, and an attempt to do something to people that they don’t want done to them,” said Sen. Dave Thompson, R-Lakeville, one of the foremost critics of the proposal and a potential GOP candidate for governor in 2014. “I think the public at large will really feel the sense that this is union politics gone too far.”
