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Will ruling upend 2 organizing drives?

The U.S. Supreme Court recently said that home health care workers in Illinois can’t be required to pay union dues to cover the costs of collective bargaining negotiations.

The Harris v. Quinn decision will be felt in Minnesota, where two labor groups are working to organize both home care workers and in-home day care workers through a union election. But the issue is far from decided.

In the Harris decision, the court ruled that “partial public employees” cannot be required to pay fair share union dues. Fair share payments are not full dues and cannot be spent on any political activity.  The unions argued that because the home care workers collected state money in the form of Medicaid reimbursements and were regulated by state agencies, they were hybrid state employees, and could therefore unionize — even though they were hired by the families they cared for.

Opponents, like those in Minnesota, countered that the workers are actually private, small business owners and therefore not eligible to collectively bargain. In Minnesota two lawsuits are challenging the 2013 law that allowed the day care workers to have union votes.

Two theories

The two cases present slightly different legal theories as to why. But Chief Judge Michael Davis dismissed them both, saying it was too early because the workers had not started the unionization process. The plaintiffs appealed to the 8th U.S. Circuit Court of Appeals, and that panel issued an injunction pending the outcome of Harris, but the unions trying to organize the day care workers could proceed with organizing the elections.

Bill Messenger is a staff attorney at the National Right to Work Legal Defense Foundation and represents Jennifer Parrish, the named plaintiff in the day care provider suit. He said the Harris decision goes a long way toward proving his argument that unions can’t take fees from people who aren’t eligible to unionize. His clients are not partial employees, as the unions argued.

The Springfield, Va.-based organization “provides free legal aid to anyone forced to support unions,” Messenger said.

“My clients work for themselves. They run a home-based business, and the service they sell is child care. These aren’t state employees,” he said. “On the merits, our case is the same [as Harris]. The Supreme Court has now said: ‘You can’t collect union fees from day care and personal care providers.’”

He said he will continue to push for the law to be overturned. The next step is for the appeals panel to decide if the lawsuit is timely and then send it back to Davis for further analysis on the underlying issues or decide outright in the wake of the Harris decision, Messegner said.

Seaton, Peters & Revnew attorney Doug Seaton represents a second group of  workers who sued to block the law. He said his suit is complementary to the Parrish suit Seaton challenged the Minnesota law with a more sweeping, fundamental argument than Messenger: that the Minnesota Legislature cannot pass a law that allows day care providers to unionize because doing so violates federal labor law.

“The workers are private entities, not public actors,” Seaton said. “We think the National Labor Relations Act says they can’t be unionized. These are small business owners who pay taxes and have a few employees. Only employees who get a W-2 from the federal government can be unionized.”

It’s a tougher argument to make than the one Messenger posits, but if successful it would be a more crippling blow to the Minnesota law.

‘Harris’ reach unclear

Unions are increasingly looking to nontraditional occupations, like adjunct college faculty, fast food restaurant workers and now home health care providers, as potential employees to unionize. Business groups say this move is because unions are hurting and looking for more dues-paying members. The unions counter that unionizing workers improves working conditions and the quality of service to consumers.

The Harris decision was specific to the question of dues. It said unions can’t charge fair share dues to “partial” public employees, but it left unanswered the question of whether those employees can unionize. Last week, SEIU Healthcare Minnesota organized a press conference in St. Paul to announce they will begin union elections on behalf of the state’s 26,000 home health care workers. The event was billed as the largest union election in history. The AFSCME union is working to organize child care workers. Union officials said the Harris decision will not stop their efforts. Voting will be done by mail, and ballots are expected to go out later this summer.

“This decision doesn’t stop them from organizing and collectively bargaining with the state,” said Elliot Seide, the director of AFSCME Council 5.

Seaton’s suit seeks to stop the day care workers union elections from starting.

“Whatever the court decides about Parrish, we say you can’t even start the process of unionizing. We are seeking to strike down the entire statute rather than modify one part of it,” Seaton said. “[The unions] want to take my clients money against their will. Part of the issue is, ‘who gets to speak for you without your permission?’”

Marylee Abrams, an Arden Hills labor and employment attorney, said the Illinois decision is very much related to the unionization effort in Minnesota and puts a “different complexion on the organizing.”

“There are certainly similarities between the providers and what they are objecting too,” she said. “I think it’s much broader than [the Harris decision]. Some people believe this was the beginning, that the court has teed up another case to come alone and further challenge the question of union membership.”

Patrick Thornton is a staff writer for Minnesota Lawyer, a sister publication of Capitol Report.

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