Court still deciding if it should halt union drive

Published 9:41 am Friday, July 19, 2013

MINNEAPOLIS — The fate of a possible election that could unionize thousands of Minnesota home day-care operators rests with federal Judge Michael Davis, who said at a hearing Thursday that he would rule quickly on whether to halt the drive.

Minnesota lawmakers authorized the union-organizing effort earlier this year, but opponents asked Davis to put the law on hold. The proposed union would cover some 12,700 providers who take care of children who are subsidized by the state. The same law permits a separate union push for personal care attendants for the sick or elderly, though discord over that effort has yet to spill into court.

Doug Seaton, the attorney for a group of day care operators trying to block the union drive, said an election appears imminent and argued that it may be impossible to unravel its result. But state Solicitor General Alan Gilbert said a pair of lawsuits challenging the law is premature, arguing that those suing can’t prove harm from a process that has yet to fully play out. He argued for dismissal.

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“It cannot be based upon speculations on a series of hypotheticals,” Gilbert said, asking Davis to dismiss the lawsuits.

Democrats who control the Legislature approved the union-organizing drive in May over unanimous opposition from Republicans in the minority. The GOP has accused legislators and Gov. Mark Dayton of paying back union allies. Dayton shot back this week that “right-wing extremists” are funding the legal challenges.

This isn’t the first time the unionizing push has wound up in court. After Dayton tried to call the union vote through an executive order in 2011, opponents won a state court order invalidating the move. The Legislature got involved only after party control flipped to Democrats.

This time, the dispute has attracted national interest and money from pro- and anti-union forces. An attorney for the National Right to Work Legal Defense Foundation suggested to Davis that it’s the type of dispute that could go all the way to the U.S. Supreme Court. But for now, it’s a matter of whether the election can proceed.

The American Federation of State County and Municipal Employees chapter behind the drive has three years to make its case. Union officials acknowledge they are mobilizing toward an election, but they don’t expect one will occur anytime soon.

Seaton told the judge that he suspects the process will move “at breakneck speed” once organizers get the green light. Even if his side wins an injunction, it will have to then convince a court that the state law is unconstitutional on grounds it infringes on freedom of association and turns what essentially are employers into unionized employees.

Gilbert ran through the sequence of events that must occur before a union is formed and any agreement put into effect. It starts with a petition drive, submission of pro-union cards and then a vote. Agreements reached between the state and a union are subject to ratification by the Legislature and the union’s members.

Gregg Corwin, an attorney for the union, said the plaintiffs are guessing that any result will harm them because it is “ideologically and politically repulsive to them.” He said a proposed union could achieve higher reimbursement rates, better training and improved working conditions. High turnover among child care workers could stabilize as a result, he said.

But Seaton said the law intrudes on the operation of independent businesses and compels them to pay union fees even if they don’t favor it. Some, he said, might opt out of providing care to subsidized children.

“Their lives will be changed. Their livelihoods will be changed,” Seaton said.

More than a dozen day care providers — on both sides of the issue — sat through three hours of arguments. Terrie Boyd, the owner of a Detroit Lakes childcare, said she is steadfastly opposed to being unionized or paying “fair share” dues to a union that she would refuse to join.

“I would choose not to accept subsidized families,” she said. “I do not need to be offering a hand up to someone while someone else has a hand in my back pocket.”

But Mary Albert, a day care operator from St. Paul, said stopping the process now would be unfair.

“We just want to have a vote,” Albert said.