U.S. District Judge Michael Davis is expected to decide Wednesday whether to stop the biggest unionization election in Minnesota history.

Davis said at a hearing Tuesday that he'll decide by noon whether to issue a temporary injunction that would halt an election, now in progress, to determine if nearly 27,000 personal home health care workers will be represented by the Service Employees International Union (SEIU).

The injunction is being sought by the National Right to Work Foundation, a Florida-based organization that has fought unionization. It sued on behalf of some home care providers who oppose the union.

William Messenger, the foundation's attorney, said if Davis does not issue an injunction, he could immediately appeal to the Eighth U.S. Circuit Court of Appeals.

Ballots were mailed to home health care workers Aug. 1, and barring an injunction, will be counted next Tuesday by the state Bureau of Mediation.

Bureau commissioner Josh Tilsen says that 5,297 ballots have been returned so far.

The union campaign involves the largest group of workers, public or private, to attempt to win a union election in Minnesota since Congress passed the Wagner Act in 1935, said Peter Rachleff, a retired history professor at Macalester College. "Nothing comes close," he said.

If it wins the election, the SEIU would have the authority to bargain with the state over wages, rules and working conditions.

Monday's hearing pitted Messenger against Alan Gilbert, the state's solicitor general, and SEIU attorney Scott Kronland of San Francisco.

Davis, the chief federal judge in Minnesota, questioned Messenger about his contention that the election would undermine his clients' First Amendment rights.

Choosing the SEIU "doesn't block your clients from shouting from the rooftops" about their differences with the union, Davis said.

Messenger's clients would not have to pay dues and could still lobby, he said.

Davis also expressed concern about working conditions, citing an article in Sunday's Star Tribune about the lack of training for home care workers.

Messenger said that the principal harm to his clients was that the SEIU would become their exclusive representative and there was no compelling need for a single union.

Kronland said any agreement would require legislative approval and individual lobbyists can oppose it. "Their First Amendment rights are not impinged," he said.

Gilbert, representing Gov. Mark Dayton, who is among those being sued, said that it is speculation to argue that providers will be harmed. The resulting election "might not adversely affect plaintiffs at all," Gilbert said. "We just don't know. It might be helpful to the plaintiffs."

About 20 home health workers, clients and union staffers watched the hearing from the gallery.

"For years our jobs have been put on the back burner," said Darleen Henry, 24, a home health care worker in Rosemount.

"Our Legislature has not paid attention to our needs. We don't have access to training, paid time off and a living wage."

Teri Bierman, a home health care provider who cares for her disabled daughter, is a plaintiff seeking the injunction to stop the election. She said she was concerned that a union would prevent her from negotiating wages on her own.

Randy Furst • 612-673-4224