Judge shoots down Dayton's order for child-care union vote

  • Article by: JIM RAGSDALE , Star Tribune
  • Updated: April 6, 2012 - 10:48 PM

Judge's decision effectively ends an attempt to unionize in-home child-care providers in the state. Dayton violated separation of powers clause, judge said.

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Gov. Mark Dayton

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Gov. Mark Dayton's executive order calling for a union election among 4,300 in-home child-care providers was shot down Friday by a Ramsey County judge, who said Dayton exceeded his authority and made an unconstitutional end run around the Legislature.

"The governor has improperly superseded the Legislature's authority and violated the separation of powers clause as set forth in the Minnesota Constitution," Judge Dale Lindman said in his ruling. He called Dayton's Nov. 15 order setting a union election a "usurpation of the Legislature's constitutional right to create and/or amend laws."

The decision effectively ends a unionizing effort that pitted two of the state's biggest labor unions and the DFL governor against a Republican-led Legislature and conservative organizations that helped bankroll the legal challenge. Unless reversed on appeal, the decision gives a resounding victory to the anti-union forces.

"I'm elated today -- very happy with the judge's ruling," said Lakeville child-care provider Becky Swanson, a plaintiff in the lawsuit who opposed unionization. "I think it's just the start to waking up child-care providers across the United States."

A spokeswoman said the governor respected the decision even though he disagreed with it, and said no decision has been made yet on whether to appeal.

The issue became a major battle between Dayton and the Legislature last fall, as the American Federation of State, County and Municipal Employees (AFSCME) and the Service Employees International Union were finishing membership drives among the state's 11,000 licensed, in-home child-care providers. The unions asked Dayton, a strong union supporter, to consider issuing an executive order recognizing the unions as bargaining agents for the providers.

Anti-union child-care providers, Republican legislators and conservative organizations such as the Minnesota Majority tried to block the unionization effort. Supporters argued that the unions could help providers with subsidies and regulations and perhaps even health insurance. But opponents countered that providers run private businesses with no employees, and could not benefit from union representation.

Dayton's executive order did not unionize the providers, but it allowed some of them to vote on whether to unionize. The order limited the election to providers with children receiving state subsidies -- about 4,300 of the 11,000 total.

Lindman's ruling cancels that election. In his decision, Lindman said "no employer-employee relationship exists between child-care providers and the state." The judge said that because this does not meet the legal definition of a "labor dispute," the state's Bureau of Mediation Services has no authority to conduct the election ordered by Dayton. The judge accused the governor of "attempting to circumvent the legislative process and unionize child-care providers by executive order, rather than adhering to a valid legislative process."

The criticism echoed one frequently made in recent months by Sen. David Hann, R-Eden Prairie, chairman of the Senate Health and Human Services Committee.

"I certainly believe the governor has the power to issue executive orders that are within the purview of his power," Hann said. "I don't think he can issue orders that create law."

AFSCME Council 5 spokeswoman Jennifer Munt called the ruling "disappointing, but not unexpected. Right-wing allies and their Tea Party allies sued to score political points. Their victory denies child-care providers their democratic right to vote."

House Speaker Kurt Zellers, R-Maple Grove, said in a statement that the ruling affirms that "lawmaking is a function solely entrusted to the Minnesota Legislature." He added, "I sincerely thank and congratulate the child-care providers who bravely stood up to the unconstitutional overreach of Gov. Mark Dayton and his union cronies."

Child-care provider Swanson said she does not expect the unionization effort to go away. But she said the idea of a union representing private business owners doesn't make sense.

"We own the business," she said. "We don't have employees, for the most part. Unions represent employees, not business owners. ... There isn't really anything a union can offer us that we can't already get on our own."

Staff writer Jennifer Brooks contributed to this report. Jim Ragsdale • 651-925-5042

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