Even though he lacks the constitutional authority to order a vote, Gov. Dayton signed this executive order calling for a vote to unionize in-home child care providers. The EO was announced in this statement. I suspect that Gov. Dayton’s EO will be challenged in court before today’s end because State Sen. Mike Parry has threatened to challenge Gov. Dayton’s authority in the matter:

State Senator Mike Parry tells 5 EYEWITNESS NEWS he thinks Governor Mark Dayton has over stepped his bounds on home daycare union issue.

The Governor appears poised to sign an executive order authorizing the union vote for 11-thousand home daycare providers across the state. Senator Parry doesn’t think the Governor has the authority to order a union vote, because the daycare providers are independent contractors. The Waseca Republican says he will consider legal action, if the Governor does sign the executive order paving the way for a statewide vote.

Union officials say organized daycare workers would have more bargaining power to negotiate state subsidy payments and they would have the right to appeal any regulatory action taken against a home daycare provider.

Gov. Dayton’s authority doesn’t stretch that far because the Minnesota state statute’s definition of government employee is exceptionally tight:

What is the status of home-based child care providers under the Public Employment Labor Relations Act (PELRA)?

Answer: Minnesota Statutes Chapter 179A defines a public employer as the state of Minnesota or other local political subdivisions. The law also defines public employees as those appointed or employed by a public employer. Under current law, a self-employed, home-based child care provider would not be a public employer or a public employee. Here is the link to the law; the relevant definitions are in subdivisions 14 and 15:

Here’s what the key parts of subdivisions 14 and 15 say about public employees and public employers:

Subd. 14. Public employee or employee

“Public employee” or “employee” means any person appointed or employed by a public employer except:

(a) elected public officials;

(b) election officers;

(c) commissioned or enlisted personnel of the Minnesota National Guard;

(d) emergency employees who are employed for emergency work caused by natural disaster;

(e) part-time employees whose service does not exceed the lesser of 14 hours per week or 35 percent of the normal work week in the employee’s appropriate unit;

(f) employees whose positions are basically temporary or seasonal in character and: (1) are not for more than 67 working days in any calendar year; or (2) are not for more than 100 working days in any calendar year and the employees are under the age of 22, are full-time students enrolled in a nonprofit or public educational institution prior to being hired by the employer, and have indicated, either in an application for employment or by being enrolled at an educational institution for the next academic year or term, an intention to continue as students during or after their temporary employment;

Here’s the relevant portion of Subdivision 15:

Subd. 15. Public employer or employer

“Public employer” or “employer” means:

(a) the state of Minnesota for employees of the state not otherwise provided for in this subdivision or section 179A.10 for executive branch employees;

(b) the Board of Regents of the University of Minnesota for its employees;

(c) the state court administrator for court employees;

(d) the state Board of Public Defense for its employees;

(e) Hennepin Healthcare System, Inc.; and

(f) notwithstanding any other law to the contrary, the governing body of a political subdivision or its agency or instrumentality which has final budgetary approval authority for its employees. However, the views of elected appointing authorities who have standing to initiate interest arbitration, and who are responsible for the selection, direction, discipline, and discharge of individual employees shall be considered by the employer in the course of the discharge of rights and duties under sections 179A.01 to 179A.25.

Minnesota state statute is exceptionally clear. Nowhere in the language does it talk about individual contractors being defined as government employees or employers. Gov. Dayton’s EO will get overturned if the justices follow the letter and spirit of the law.

Here’s the statement issued by the Dayton administration:

In an effort to settle a dispute concerning the right of licensed family child care providers to organize to have a union represent them in their dealings with the State of Minnesota, Governor Dayton today issued Executive Order 11-31, which calls for an election among licensed, registered, subsidized, family child care providers. This election will be conducted by the Bureau of Mediation Services, and it will give all affected providers the chance to vote by mail ballot.

If a majority of licensed, registered, subsidized, family child care providers vote in favor of union representation, the selected union will meet and confer with the Commissioners of Human Services and Education on issues that affect child care providers in Minnesota. Membership in the union, if approved by a majority of providers, will be voluntary.

About the election, Governor Dayton said, “There are two sides to this issue: some child care providers are in favor of joining a union, and some are opposed. The fairest way, and the American way, to settle this dispute is to have an election, where all the people directly affected will have an opportunity to vote.”

Please see the attached letter from AFSCME and SEIU that describes the dispute and requests an election, Executive Order 11-31, and a list of frequently asked questions about the election.

The best way to put this is to say that Gov. Dayton caved to his PEU allies. It’s also BS that “some child care providers are in favor of joining a union, and some are opposed.” The reality is that most in home child care providers want nothing to do with AFSCME or SEIU. That’s been the steady drumbeat from Day One.

Further, that point is moot since PEU’s are restricted to people who are public employees as defined by Minnesota State Statute.

Finally, Gov. Dayton is lying when he said at his announcement that people who didn’t join the union wouldn’t have to pay union dues. That’s an outright lie. Minnesota has a fair share law on the books, which Leo Pusateri highlighted in this post:

Notice how the SEIU thug at first tries to poo-poo the fact that non-union daycare providers will still have to shell out fair share costs to the union (“Fair Share” in the State of Minnesota is 80 percent of union dues-still a hefty price in anyone’s book); but after being pressed on the issue, explains away the higher cost of daycare via unionization by saying that “the increased subsidies” as a result of unionization will “more than offset the (increased) cost.

It’s worth noting Gov. Dayton repeated what that the SEIU representative said almost verbatim.

Union membership is struggling. The opportunity to collect union or Fair Share dues from 11,000 potential new members is just too interesting for the unions to resist.

Gov. Dayton is supposed to represent all of Minnesota. Thus far, he’s represented the unions in the child care matter and the militant environmentalists with the mineral rights matter.

When will Gov. Dayton represent people who aren’t part of his special interest coalition?

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