How Governor Dayton and the DFL Re-Defined Who is a “Public Employee” to Benefit Their Political Party

This is the first in a series of articles about Employee Freedom. The Center is re-engaging on the issue of employee freedom, often called “right-to-work,” because until the raw political power of government unions is addressed, it is unlikely Minnesota will see any fundamental change on issues like educational choice (students locked into an underperforming public school system), or the pension funding crisis (public employees locked into a broken retirement system). Government unions have an undue influence on who wins elections, and therefore state policy.

I was an observer at the 8th Circuit Federal Court of Appeals this past Wednesday morning. Two Employee Freedom appeals were heard by two different panels, both involving home-based personal care aides (called PCAs) who do not wish to be represented by or associated with the SEIU union. One of the plaintiffs, Kristen Greene, told me that, aside from the loss of needed funds to care for her disabled daughter, she did not want SEIU speaking for her or interfering with how she and others cared for her daughter. Others in attendance were child care providers, women who have been fighting to remain free of AFSCME so they can remain independent business women. All of these women reject the idea that they are “public employees” subject to unionization.

Please join us on November 5th from 4 to 6 PM in Minneapolis to meet some of the plaintiffs and their families who are pushing back against government unions—and hear from the lawyers who are helping them.

Here is the background: When Mark Dayton campaigned to be governor, he made a lot of promises to the labor unions that helped him get elected. Two of those unions, SEIU and AFSCME, get most or a substantial amount of their revenue, from monthly dues paid by “public employees.” The state collects the dues for the unions. Nearly 90 percent of public employees in Minnesota are in a government union, such as SEIU or AFSCME. That is one of the highest percentages in the nation for the public sector. SEIU reports having over 58,000 members in Minnesota (2 million is U.S.); in the 2014 election season, it was the fifth biggest spender at $1.5 million in support of one party (DFL) and liberal causes. AFSCME spent about $1.0 million. For contrast, the Business Partnership spent $377,000, the Chamber $263,000.

Since Minnesota is not a “right to work” state, public employees are required to either join the union that represents their job—or if they decline membership they still have to pay what is called an “agency fee” to cover the cost of collective bargaining, which in Minnesota is calculated (somewhat dubious math, I think) at 85 percent of dues. Remember this because it will come up again below, and it is very much in play at the U.S. Supreme Court right now.

Dayton made good on his promise to SEIU and AFSCME by issuing an executive order that pushed the boundary of who is considered a “public employee.” The executive order allowed these unions to organize two new sectors: personal care aides (PCAs) and in-home family child care providers (FCCs).

The people and families who were the target of this union expansion, who did not want to be unionized, saw Dayton’s move coming. It had happened in other states, and the unions had been showing up at their homes for years. In some cases, the union rep barged into homes unannounced when children were present; women report that it was hard to get them to leave. So they hired lawyers, including Minneapolis labor law firm Seaton, Peters and Revnew, and the Right to Work Foundation. Dayton’s executive order was soundly rejected in Ramsey County District Court on the grounds that a governor did not have the authority to order a union election.

Elections have consequences. But the legislature, which turned over in 2012 so that the DFL had complete control, passed two statutes in 2013 that redefined who is a public employee under the state labor law (PELRA) for purposes of organizing a union to collectively bargain with the state. It is limited to the 27,000 plus PCAs who receive payment for their services under the state Medical Assistance program. Many of them are family members who are caring for a disabled family member.

On the child care front, the law extends only to providers (CCFs) who have a child in their home-based child care who receives “CCAP” or Child Care Assistance Program for low income parents. (The crazy thing is that the CCAP money goes to the child, not to the child care provider, so how can the provider be considered the state’s employee? This is pretzel logic.)

I am told there were about 15,000 CCFs in 2011 but that number has now dropped to about 9,000 child care providers who are willing to expose themselves to AFSCME and the state. (Think about what that has done to day care choices for low income parents.)

Where do things stand? SEIU was “certified” last summer to represent 27,000 home-based personal care aides (PCAs). Without going into the weeds on the conduct of union “elections,” suffice it say that Minnesota law allows unions to be “certified” as the exclusive representative with very little effort or support. The rules also overlook sneaky practices like union reps telling someone that the card they are filling out is just for “informational purposes” when in fact it is a vote for the union.

In the case of PCA’s, only 5,872 votes were cast out of 27,000: so about 13 percent of eligible voters were able to impose the union on all PCAs. That is all it takes in Minnesota for SEIU to get a new revenue stream, collected by the state, for its political activities. They now represent people who did not vote or voted “no” under a two-year contract that went into effect July 1, 2015. They wrap themselves in the flag and call it “a democratic process.” They omit the part about cherry picking who gets a card so they can control the outcome.

AFSCME is now conducting its own campaign to represent CCAP providers of low income parents in collective bargaining with the state. Even the Minneapolis Star Tribune thinks it is a bad idea to have AFSCME and the state negotiate over terms and conditions of employment, draining away funds from providers and sending about a third of the dues to the national union. The editors recognize that AFSCME’s efforts will affect ALL child care providers, whether in the union or not because the union will not limit itself to pay or vacation issues but expand into regulations of home child care.

(I am told that many child care providers think AFSCME was defeated in court years ago—so if you use home based child care, would you please ask your provider to watch for the AFSCME union card and vote NO?)

Here is some good news: While all this was happening in Minnesota, a brave Mom by the name of Pamela Harris in Illinois was fighting back against SEIU. She did not want to pay dues to SEIU just because she received assistance when caring for her disabled child. She did not want to be forced to support the SEIU’s political advocacy. She took her case all the way to the United States Supreme Court and won last June (Harris v Quinn).Here is what the court said: The First Amendment prohibits the collection of an agency fee from home health care aides who do not wish to join or support a union.

Previous case law said that you had to at least pay an agency fee to cover the costs of collective bargaining. Harris said that violates the constitution but it is limited for now to home health care aides because they are not “full-fledged public employees.” Other cases with actual public employees (like Rebecca Friedrichs, a teacher from California) are moving through the courts that I will tell you about in the near future but for now, PCAs in Minnesota do not have to pay any fees to SEIU under the law….

That is unless they inadvertently signed a union card (believing it was just for “information” because that is what union reps standing in their kitchens told them) or they knowingly signed a card but have changed their mind. Let’s just say that once you have signed an SEIU membership card, it is like checking into the Roach Motel. Once you have checked in, it is nearly impossible to check out. I will tell you more about that, too, in the near future.

Minnesota’s growing population of seniors who will provide a steady increase in the need for PCAs and potential PCAs who join the SEIU. But thanks to the Harris decision, PCAs do not have to join SEIU or pay any dues.  Aside from the fact that getting out of the membership agreement is tough, what is the policy objection? Isn’t this what supporters of right to work have been looking for?

The harm comes in for taxpayers, PCAs and I would argue, our entire political process because of what SEIU and other government unions do with the money they collect from taxpayers. The SEIU does not just collectively bargain for the benefit of its members. It supports a political agenda and candidates.

Here is just a sampling of the issues you can find SEIU supporting right now: Minneapolis Mayor Hodges attempt to set the terms of employment for businesses (scheduling, sick pay, etc.); a $15 dollar minimum wage; Planned Parenthood; the Pope’s call for action on behalf of “working families” and climate change regulations; Obamacare and universal health care; amnesty for illegal immigrants; opposition to raising the retirement age to 70 for social security; and even opposition to Puerto Rico’s plan to address its pension and debt crisis.

According to the Wall Street Journal and the Center for Responsive Politics, the SEIU spent a third of the $320 million it collected on “non-membership services” with $48 million going to political action and lobbying. SEIU has been granted monopoly status by the people it helped get elected who use resources to collect union dues. As a monopoly, it overcharges members for its “services” and then spends that surplus on a political agenda that keeps the unions dues flowing.

Thanks to Pamela Harris, PCAs do not have to join or support the union. But SEIU will “represent” private citizens like Kristen Greene in St. Paul whether she pays dues or not. SEIU and other government unions will continue force themselves and their agenda on Mrs. Greene by skimming off taxpayer funds from Medical Assistance and CCAP programs for the poor, and use those funds to elect people who agree with their agenda, and punish those who do not.

Again, please join us on November 5th to talk about Employee Freedom.