PoliGraph: Lawmaker’s claim on daycare union misses

Two Minnesota unions want to organize Minnesota’s in-home child care workers, and the effort has sparked a heated battle between the Dayton administration and Republicans in the Legislature.

Among those who oppose the effort is Rep. Torrey Westrom, R-Elbow Lake, who sent a letter to child care providers encouraging them to reject unionization.

On Dec. 2, he wrote that, while only some day care providers will be able to vote on whether to unionize, “the other 7,000 providers will be forced to pay full or ‘fair share’ union dues, and will be subject to additional regulation, even though they were denied the right to vote in this election.”

Westrom’s claim is false.

The Evidence

Two Minnesota unions – American Federation of State County and Municipal Employees and the Service Employees International Union – are trying to unionize the state’s in-home day care providers.

On Nov. 15, Gov. Mark Dayton issued an executive order that would allow Minnesota’s day care providers who are licensed and registered, and who participate in a state program that subsidizes child care to vote on unionization. That’s roughly 4,200 providers out of the approximately 11,000 in the state.

If the majority of those 4,200 agree, it would give the union the right to hash out issues, such as regulation and subsidy rates, with the administration. At this point, a court has put a restraining order on Dayton’s executive order but Dayton plans to contest that order.

So, Westrom is correct that only some child care providers will be able to vote on whether there should be a union. But he’s wrong that those who don’t want to be in the union would have to pay fair share union dues.

A Frequently Asked Questions document on the executive order from Dayton’s office is clear on this:

“The Minnesota Fair Share law (Minn. Stat. § 179A.06, subd. 3), which requires all public employees to contribute ‘a fair share fee for services rendered by the exclusive representative,’ would not apply to these family child care providers.”

Dayton’s executive order makes clear that, “nothing in this order shall be construed to require participation, or the involuntary payment of dues by any family child care provider.”

As for additional regulation, Westrom is off the mark there as well. At this point, unionization doesn’t come with additional regulations, let alone regulations that all of Minnesota’s 11,000 in-home child care workers would be subject to.

Westrom conceded that given the complexity of the issue and the amount of context needed, the sentence may have been better written as: “The other 7,000 providers may be forced to pay full or “fair share” union dues, and will be subject to additional regulation, even though they were denied the right to vote in this election.”

The Verdict

Under Gov Dayton’s order child care providers who are not allowed to vote on unionization will not have to pay fair share dues.

Westrom’s claim is false.

SOURCES

Letter, Rep. Torrey Westrom to constituents, Dec. 2, 2011

Office of Gov. Mark Dayton, Governor Dayton issues executive order calling for union election among child care providers, November 15, 2011

Office of Gov. Mark Dayton, Frequently Asked Questions about Child Care Collective Bargaining, accessed Dec. 13, 2011

Associated Press via Minnesota Public Radio News, Dayton to contest child care unionization ruling, December 8, 2011

  • Catharine Richert

    Rep. Westrom asked that we post his entire response to our questions, so here it is:

    Dear Catharine,

    The assertion that child care providers will pay fair share dues was made based on federal and Minnesota labor law, statements by union representatives, and committee testimony.

    State and federal law allows for agency dues or fair share fees to be collected, depending on the terms of a bargaining agreement, from non-members for activities undertaken by a union for activities impacting or benefitting a non-member, but may not include costs associated with benefits only provider to members. This could include the union working with state agencies or the legislature on such things as licensing modifications, new regulations, or other changes affecting quality of care.

    While the Governor’s executive order states that nothing in it requires “the involuntary payment of dues by any family child care provider,” that may not apply depending on how an agreement is crafted. It also may not apply if, per Paragraph 12 of the order, the union attempts to collect fair share dues and the Bureau of Mediation Services decides that section of the EO is unenforceable. As noted in committee testimony, the details of an agreement created by the union and the union’s operation are unknown. If an initial or future agreement covers all child care providers, but the union does not provide any benefits exclusive to members, the ~7,000 providers not included in the election could be made to pay full or near-full union dues as fair share dues.

    During the House Commerce Committee hearing on November 21, Bureau of Mediation Services Commissioner Josh Tilsen testified that “what was proposed was not traditional labor management relations. It’s not… these are independent small businesses, they are not– neither contractors of the state or employees of the state.” Further, in response to a question regarding how an agreement reached between the union and the state would impact all 11,000 child care providers, Commissioner Tilsen replied, “I don’t know… they need to be cautious about agreeing to things that affect providers that are not part of the meet and confer process.”

    In the EO, the Governor stated that the Commissioner of BMS has broad authority over the “conduct of elections and the resolution of labor disputes in the State, regardless of whether there is an employer or employee relationship.” That may be correct, but House Research testified that the Minnesota Labor Relations Act (MN Stat 179.01), which establishes the BMS, exempts those “in domestic service of any person at the person’s own home.” Additionally, based on Commissioner Tilsen’s testimony, a child care union would likely not be governed by PERLA. However, the ability of a union to collect fair share dues is clear. Because of this (and paragraph 12 in the EO), the ability of, and process for, child care providers to contest the collection of fair share dues as provided in Chapter 179A, is unclear.

    Jennifer Munt, public affairs director for AFSCME Council 5, said in a November 22 Pioneer Press article that the hope is eventually all 11,000 providers would be able to elect to be organized. The process by which some of the full 11,000 could opt for union membership (or be obligated to pay fair share dues) is as unclear as the initial formation of the union. It could happen through a broad initial agreement between licensed providers participating in the election, or it could happen through another election.

    Given the statement by Ms. Munt, and the absence of details on how a child care union would operate in the event of a successful vote, I believe it is reasonable to conclude that the providers who do not take subsidies will pay fair share dues. However, given the complexity of the issue and the amount of context needed, the sentence may have been better written as: “The other 7,000 providers may be forced to pay full or “fair share” union dues, and will be subject to additional regulation, even though they were denied the right to vote in this election.”

    Other members have sent letters to child care providers in their district, but I am not aware if they are similar to the letter I sent in early December.

  • bull

    this is just a way to raise more funds for the unions, it has absolutely nothing to do with helping in-home day care providers. Anyone who tells you any different is a liar and a crook

  • AnnW

    The “FAQ” written by the Governor’s staff and taken as source also asserts that the governor has authority to call the election, disputed and blocked a judge. Seems like that would have been good background information.

  • http://www.childcarefreedom.com Dan McGrath

    The governor does not have the authority to make law by executive order (the reason a judge blocked it in the first place). Therefore, despite the governor’s stated intentions and statements of how the order should be “construed,” once an union is formed, it will be goverened by the laws already on the books, which allow the union to collect fair share dues and establish the union as the exclusive representatives of the “bargaining unit” (meaning childcare providers).