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Josh Tilsen, head of the state Mediation Services Bureau, left, explains Tuesday in St. Paul how an election will be held next month to allow daycare providers to unioinize. Also pictured is Gov. Mark Dayton. Tribune photo by Don Davis

Minn. Gov. Mark Dayton's union daycare order finds itself bound for court

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ST. PAUL -- The courts likely will decide whether state-subsidized home daycare providers may join unions.

Gov. Mark Dayton on Tuesday ordered an election next month to see if the providers want to unionize. Minutes later, Republicans said they would ask a court to prevent the election.

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Some Minnesotans who run daycare centers in their homes have asked for six years for the right to unionize, citing their low wages and poor working conditions. They say that being in a union would give them a stronger voice in the Capitol.

Dayton said they asked him to unilaterally order union representation. However, he said, the American way is to conduct an election. The vote results will be announced Dec. 21.

Dayton's order limits the ability to joining unions to licensed home daycare providers that receive state subsidies. That could be up to 5,300 out of 11,000.

Immediately after the ann-ouncement, Senate Republicans challenged the legality of a governor making such a decision and said they would take him to court.

"Our reading of current law makes clear that private, home-based child care providers are not public employers or employees and therefore do not fall under the jurisdiction of the Bureau of Mediation Services and are not subject to public employee labor relations law," Sen. Mike Parry, R-Waseca, said.

His order indicates "there has been a troubling decline" in the number of home day-care providers.

Mediation Services Commissioner Josh Tilsen, who Dayton ordered to organize the vote, said ballots will be mailed Dec. 6 and must be returned within two weeks.

The bureau never has conducted a similar election. Dayton said he had not thought about whether other groups could ask permission to join unions.

For unions to be allowed to represent home day care providers, more than half must vote for the action. Even then, Dayton said, no provider is required to join or pay dues.

Those who want unions and those who don't have argued about it for six years.

"The fairest way, and the American way, to settle this dispute is to have an election, where all people directly affected will have an opportunity to vote," Dayton said.

Republicans said the executive order amounts to giving the right to decide child care provider pay to unions, taking it away from the Legislature.

"It is just another merry Christmas gift," Parry said.

Sen. David Hann, R-Eden Prairie, said he expects to quickly go to court to stop the election.

"What do you do with a governor who won't follow the law?" Hann asked.

Hann, the Senate Health and Human Services Committee chairman, could not say whether the Senate, Republican lawmakers or someone else would pay for the court action.

Dayton said his lawyer saw no legal problems with the order, but Attorney General Lori Swanson has not issued a definitive opinion. A Senate lawyer testified earlier this fall that there is no law that allows Dayton to issue the order, and that it is questionable whether the Constitution gives him the authority.

The Democrat governor, who received union backing in his election bid, met with both sides of the issue.

A day-care provider opposed to the union vote said Dayton told her group that "this would be a small starting point and could be expanded in the future." Heather Falk, a Cloquet in-home childcare provider and the vice president of Carlton County's chapter of the Minnesota Licensed Family Child Care Association, said that while no one would be forced to join a union, decisions unions and the state make could affect all providers.

Those supporting unionizing said that with a union, they would have a say in what the state does.

"Providers who chose to join together in a union will gain a strong voice to work with the state to increase the quality of child care ... and to stabilize our profession," said Clarissa Johnson, a Mounts View child care provider.

If the vote succeeds, the American Federation of State, County and Municipal Employees and Service Employees International Union plan to split up the state, with AFSCME taking most of the northern two-thirds of the state and SEIU the southern areas.

Jana Peterson of the Pine Journal contributed to this story. Don Davis reports for Forum Communications Co.

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Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.
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