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Judge declares Minn. unionization order unconstitutional

By Michael P. Tremoglie | Apr 12, 2012


ST. PAUL, Minn. (Legal Newsline) - A Minnesota judge declared on Friday 6 that Gov. Mark Dayton's executive order - compelling Minnesota in-home child care providers to vote for union representation - is unconstitutional.

Judge Dale Lindman of Minnesota's Second Judicial District ruled the governor "exceeded his authority" to mandate union elections. The order violated the separation of powers provision.

"The governor has improperly superseded the Legislature's authority and violated the separation of powers clause as set forth in the Minnesota Constitution," he wrote.

He described the order as a, "usurpation of the Legislature's constitutional right to create and/or amend laws."

The judge wrote in his opinion, "By Executive Order 11-31, the Governor is attempting to circumvent the legislative process and unionize child care providers by executive order, rather than by adhering to a valid legislative process."

The governor issued the order, according to the judge, simply because two unions, the American Federation of State and County Employees and Service Employee International Union, stated that a majority of providers wanted union representation when negotiating with the state. But the judge noted that the no employer-employee relationship existed with the state.

The litigation was a major issue in Minnesota and could have ramifications nationwide. The two major unions, AFSCME and SEIU, have used governor's executive orders to attempt to unionize similar workers in other states.

Attorney Thomas Revnew, who represented nine plaintiffs in the case, said that they did not need or want a union to represent their interests. Revnew said the judge only felt it necessary to rule on the constitutionality issue. He did not issue an opinion for two other issues.

One was that the governor's order violated the equal protection clause of the state constitution. It provided that only 4,200 of approximately 11,000 of these providers vote for a union. But if approved, the union would collectively bargain for 4,200 but they would negotiate for licensing requirements and other standards that impact all of the providers.

The other issue for which the judge did not feel it necessary to issue an opinion was if the executive order was preempted by the National Labor Relations Act. Since in-home providers meet the definition of employers they are not allowed to participate in union elections.

"Gov. Dayton does not have the constitutional authority to issue the executive order that he did," he said. "He cannot mandate these in-home providers participate in a union election."

A similar legal challenge to Minnesota's child care provider unionization order was filed in federal court. Bill Messenger, a Springfield, Va., lawyer is representing 12 home care providers in Minnesota for the National Right to Work Legal Defense Foundation.

He has said that both the SEIU and AFSCME, embarked on a campaign to divide the country between them with each union taking certain states for unionization.

"Minnesota was divided in half between AFSCME and SEIU," Messenger told Legal Newsline in January. "The Northern counties are ASFCME Council 5 and the southern counties are the SEIU. Michigan was a joint effort between AFSCME and the UAW."

Lindman concluded his opinion by declaring Dayton's order null and void; permanently enjoining the defendants from taking any action to implement the order; permanently enjoining the elections; and awarding attorneys' fees to the plaintiff.

John N. Raudabaugh is a professor of labor law at Ave Maria School of Law in Naples, Fla., and a former member of the National Labor Relations Board.

"It is very straightforward, the Minnesota court is saying the governor does not have any authority to direct the state labor relations to proceed with an election to certify representation when in fact only 40 percent receive state money and they are independent contractors. Minnesota state law is limited to only employees are the state," he said.

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