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Your indispensable FAQ on day care, Dayton, unions and a judge

Q: I read this week that a Ramsey County District Court judge halted an election called by Gov. Mark Dayton in which day-care workers were to vote whether to unionize. I’m confused. How did a judge and an elected official get involved? Aren’t union organizing campaigns a matter for an employer and its employees?

A: I feel your befuddlement. This particular drama is populated by plenty of proletarians and petite bourgeoisie, but the big bad capitalists seem to be hidden by a phalanx of politicians. It might be easiest just to start in the beginning.

In the waning days of the last millennium, the American worker faced a contradictory bundle of challenges. A changing economy, welfare reform and a host of other factors had propelled parents of both genders into the work force, leaving a poorly paid, unevenly trained underclass to care for the kids. 

Forget health insurance, retirement and a living wage, family day-care providers had zero say over lots of policies that had a big influence over their work. They had no say on setting the state subsidies their low-income neighbors used to pay them, no say over rules regarding their training or their physical space, and no champions in the political arena.

The champions — unions — had problems, too. The traditional job, which created and fueled that whole worker-boss dichotomy, was becoming an endangered species. But Americans remained hard at work, more and more often as contract employees (a category that includes many MinnPost contributors), sole proprietors and odd-jobbers.

Instead of being dependent on employers, many were dependent on government to create the policies that would make or break their very small businesses — sending ripples into the ranks of the worker bees that patronized their services.

Organized labor began exploring ways to unionize people who do not hold jobs. Initial efforts throughout the country have focused on some of those with the lowest pay and least power: private child-care providers and home health aides.

In Minnesota, the 6-year-old effort has been led by the Service Employees International local 284 and AFSCME Council 5.

Q: So they’re looking to bargain collectively with the state?

A: Not so much. They want many of the things their union brethren enjoy — a voice in establishing working conditions, setting pay rates, access to benefits — but instead of getting them via a contract they are seeking a seat at the policymaking table.

And because kids benefit from better care, they’ve got a compelling argument that the state and its citizens should want them there. In 15 states — Michigan and Connecticut are oft-mentioned examples — Democratic governors have stepped into the odd vacuum created by that missing employer and certified their unionization by executive order.

Naturally, all hell breaks loose when they do, and no one has yet worked through enough of the wrinkles for there to be anything approaching a tried and tested roadmap for how to organize stand-alone service providers.

Gov. Mark Dayton
MinnPost photo by James Nord
Gov. Mark Dayton

Q: I suppose I shouldn’t be surprised that a DFL governor sided with labor.

A: You’re forgiven for assuming as much. But Dayton stopped far short of doing what the local locals wanted him to [PDF]. Feeling that the potential union members should decide for themselves, he issued an executive order [PDF] directing the state Bureau of Mediation, which is where the pocket-protector set that guards the state’s labor laws, to hold an election of licensed family child-care providers registered to receive subsidy payments from the state Child Care Assistance Programs. 

Some 4,000 of Minnesota’s 11,000 family providers would be eligible to vote [PDF]. If a majority voted to unionize, representation would entitle them to “meet and confer” with bureaucrats at the departments of Education and Health and Human Services. That’s a form of collective bargaining, right?

In this case, a “yes” vote would not compel day-care providers to join the union or pay dues. The naysayers and non-joiners could not, however, go off and join a different one.

Q: OK, so Dayton’s an equal opportunity disappointer. Where does he get off end-running the Legislature, which even I know is controlled by a party that hates unions, and issuing an executive order? Isn’t that an abuse of power?

A: Maybe. Governors and presidents are generally entitled to issue orders so long as lawmakers have written the law that makes the orders legal. Electeds from both parties do it; if they couldn’t, things would grind to a halt.

This year’s Legislature refused to vote to make an early-childhood-program quality ratings system that had been piloted into a statewide initiative. But neither did legislators repeal the law creating the pilot. Et voila, we’re getting a ratings system.

Q: So we’re getting a day-care union?

A: Maybe. Back by some of the same conservative groups that opposed the aforementioned quality ratings system, some of the providers who are not eligible to vote sued. They argue that Dayton exceeded his authority and the limit on who can vote is unconstitutional.

Earlier this week, the judge hearing the case issued a temporary order halting the balloting, which was to begin by mail Dec. 6. From the bench, Judge Dale Lindman said that at least on first blush, he agreed with the plaintiffs.

But he has yet to issue a written opinion, so it’s impossible to re-create his interpretation of the statutes Dayton relied on in crafting his executive order. And he may change his mind after a Jan. 16 hearing.

Q: So why don’t the providers just start lobbying? Any John or Jane Q. Public is entitled to do that — and for free.

A: Well, there is that whole matter of the changing American work force. But after that we’re veering into speculative territory here.

One advantage to a union is it has the scratch to field actual professional lobbyists. Day-care workers? They may understand the roots of the achievement gap and the frustrations of the working family better than anyone, but they are busy, busy, busy making single-digit hourly wages wiping your little darlings’ — ah, noses. 

And who could blame the persecuted union, which other governors would just as soon do away with altogether, for looking for purchases on even the most slender outcroppings? A seat at the table is a seat at the table. 

Q: Fat lot of clarity you’ve delivered for me.  

A: Guilty as charged. But I promise you this: We’ll stay on the case, and as soon as someone in authority pronounces on this whole issue of statutory authority, we’ll get back to you.

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Comments (16)

  1. Submitted by Arito Moerair on 12/08/2011 - 10:57 am.

    I’m a union supporter, but I don’t get this at all.

    The providers set their OWN working conditions and pay rates. If you start charging union dues, then those providers will have to raise their rates. And if only subsidized providers are paying dues, then they raise rates on the very families that can least afford it!

    Health benefits are another matter, and I know it is difficult for these small businesses to get anything. However, if we had universal healthcare, this wouldn’t be an issue.

    I’m also a Dayton supporter. But I cannot shake the obvious feeling that the union called in their favours after assisting with his campaign. I don’t see why else Dayton would be doing this.

  2. Submitted by Thomas Swift on 12/08/2011 - 11:05 am.

    Bravo, Beth!

    Carol Nieters couldn’t have done it better, and I’m sure you can look forward to a little something-something from Eliot Seide in your Chri…erm, Holiday Festival stocking!

  3. Submitted by Dennis Tester on 12/08/2011 - 11:17 am.

    ” … leaving a poorly paid, unevenly trained underclass to care for the kids.”
    “The champions — unions — had problems, too.”

    Oh please. My wife has done day care for 20 years and she considers herself a small business person, not a “worker.”

    And name another small business owner who is expected to join a government union?

  4. Submitted by Kurt Anderson on 12/08/2011 - 11:23 am.

    My wife is an in-home day care provider and I can assure you that a lot of otherwise liberal-leaning people are feeling very prickly about AFSCME muscling into this territory. She and most of her colleagues are not subsidized providers (except for food subsidies) so the order and vote do not directly affect her although it feels uncomfortably close to home.
    The quality ratings system (“Parent Aware”) was a big annoyance — documenting long existing practices, an ISO 9000 type program — that many providers participated in during 2010 but decided to drop in 2011. We keep our 2010 “top rated” PA lawn sign half-hidden behind a bush.
    Most in-home providers manage to do better than single digit hourly wages if you consider final Schedule C net income divided by hours worked. But it is strenuous work, no doubt about it.
    Finally, BE CAREFUL about ambiguous (or even crystal clear) references to an underclass! You appear to be referring to a lot of middle-middle class people.

  5. Submitted by Michael Hughes on 12/08/2011 - 11:39 am.

    My wife does daycare and someone stopped by the house a while ago and asked her if she wanted information on the union, not if she supported it or not, just if she wanted info. She said yes and wrote her name down and now, she’s on the petition. Now, I’m all in favor of unions, but in this case, I think they cheated to get the required signatures. Also, my wife doesn’t want to join the union because I carry the benefits for us and there isn’t anything else that the union could do for her.

  6. Submitted by Dan McGrath on 12/08/2011 - 11:42 am.

    “some of the providers who are not eligible to vote sued.”

    Misrepresentation. The plaintiffs are a mixture of providers deemed both eligible and not eligible to vote.

    “One advantage to a union is it has the scratch to field actual professional lobbyists.”

    The Minnesota Child Care Association has paid, professional lobbyists, so the union doesn’t bring anything new to the table there.

    “In this case, a “yes” vote would not compel day-care providers to join the union or pay dues.”

    Ignore the governor’s platitudes about intention and assurances about the voluntary nature of this proposed union structure. Intentions do not make law. Once a union is formed, it will fall under all the laws of Minnesota that govern unions, including exclusive representation of the “bargaining unit” and “fair share” dues, which are not voluntary.

    Claims to the contrary are disingenuous and conceal the truth about what will happen legally once a union is recognized. No matter how the executive order is meant to be “construed,” it can not make law. Laws already on the books will govern the union, not the governor’s intentions.

  7. Submitted by Kurt Anderson on 12/08/2011 - 11:55 am.

    PS — the reason that all of the commenters so far this morning are men is that our wives, the providers, will not have an opportunity to get online until nap time this afternoon!

  8. Submitted by Rachel Kahler on 12/08/2011 - 03:48 pm.

    Honestly, let them speak for themselves.

    I can’t say I understand all of the issues, but I understand that it’s very unlikely that the daycare providers you speak of (your wives) are NOT the ones that were in mind when a union was proposed. If you are not a subsidized day care provider, you have little to gain from unionization, I would guess. Fine.

    But for those providing service that is eligible for a subsidy, why would you not have an interest in what the government believes is a fair subsidy? If you rely on day care subsidies in order to keep your job AND care for your children, and that subsidy is reduced or eliminated, you may have to quit your job(s) (and likely get more expensive assistance) and/or find less qualified providers for your children in order to make ends meet. As a qualified provider that would lose that business or have to swallow a pay decrease, then it’s in your best interest to be at the poker table when the cards are drawn.

  9. Submitted by James Hamilton on 12/08/2011 - 05:58 pm.

    This piece is more advocacy than FAQ-based.

    The entire effort to unionize small business owners stands the concept of unionism on its head and seeks to legitimize price-fixing, IMNSHO.

    The licensing conditions under which state-subsidized providers operate are developed pursuant to statutory rule-making procedures which are subject to comment and attack by any and all interested parties. Every aspect of each rule must be supported by what’s known as a statement of need and reasonableness. Rulemakers may not ignore salient information, no matter by whom provided, though they may disagree with it or with an advocate’s interpretation of it. The same standards apply to every state rule adopted with respect to any small business. I see no reason why licensed home daycare operators should be viewed any differently than florists or any other small business operation in this regard. An industry association serves the same purpose yet is entirely voluntary on the part of association members.

    FWIW, I’m an agnostic when it comes to unions. I’ve been members of the good and the bad, including those I considered little more than company pets. As a self-employed carpenter in the ’70s, I was offered a journeyman’s card when I hadn’t the skills of an apprentice. All that was required was that I pay the dues. (I didn’t.) My father lost his pension to a corrupt union, receiving all of $125 a month after 30 years of paying into the union operated fund. My mother worked her 30 years with another union, which by and large achieved some worthwhile things for its members back in the day.

    The hallmark of each of these, good or bad, was the fact that they represented people who worked for an hourly wage, not people who operated their own businesses. I can only conclude that this effort is more about the survival of the involved unions than it is about the workers.

  10. Submitted by Dennis Tester on 12/08/2011 - 07:01 pm.

    Obviously, Rachel doesn’t have any kids or otherwise has no experience with the day care world.

  11. Submitted by Ray Schoch on 12/08/2011 - 07:07 pm.

    We can judge the intellectual quality of at least some of the comments from Mr. Tester’s interesting assertion that small business owners (the providers) would be expected to join “a government union.” Whether a union of day care providers is a good idea or not (I provide grandpa services free of charge, so I don’t have a dog in this fight), I’ve not come across any evidence that what’s being proposed is somehow a “government union,” Mr. Tester’s paranoia notwithstanding.

  12. Submitted by Dennis Tester on 12/08/2011 - 10:03 pm.

    Ray, when the unions’ (SEIU and AFSCME) membership consists of government employees, what would you call them. Take your time now.

  13. Submitted by Chelle Blakely on 12/08/2011 - 10:58 pm.

    I had hopes this article would answer my questions, but I am afraid not. It did seem rather one sided. This issue is still terribly confusing. I can understand workers at a big box day care organizing a union. There have a common employer. Perhaps the subsidy program needs to be clarified. Is it paid to the parents or the providers? Is it the total payment, or just a subsidy? Who will the union bargain with? What will this union really do for the providers? What will it do for the non-subsidized providers?

    I understand the idea of organizing for health care benefits. Would some kind of association be able to help with that? Will the new health care exchanges work for self-employed or small business owners in this kind of category? Please, I have looked on line at many sources and no one has explained this issue well.

  14. Submitted by Cyndi Cunningham on 12/09/2011 - 05:10 am.

    Education on Child Care information:
    1) Child care Subsidies are not my income. This is the most miscontrued issue in this whole mess. Subsidy (CCAP) is the family’s benefit, not mine. I set my own business rates. If the subsidy rate is less, the family is expected (by guidlines) to pay the difference. If rates are lower, the family is the one to “suffer”. We as business owners can make business decisions to help families but then we are choosing to take less in pay, not being forced. Affecting CCAP puts us in the position of being lobbyist in the welfare system. This would eventually impact tax payers.

    2) Watch the house hearing on Nov 21 regarding Labor Laws. It is stated that there we fall under neither the federal nor state categories of labor law. Josh Tilsen with BMS makes it very clear that this is outside of anything they’ve done before. New and different doesn’t mean fair or better!

    3) Gov Dayton’s executive order reads as a “right to work” state law. Legislators haven’t debated that as an legal option in Minnesota yet, have they?

    4) I am first and formost a small business owner. All business owners have some kind of rules and regulations they have to follow. So…who’s next in having elected officials form labor unions?

    5) check out http://www.childcareinfo.com This coalition has been working to education providers for a long time, we are solely providers and have no political affiliation.

  15. Submitted by Dan McGrath on 12/09/2011 - 12:58 pm.

    “Perhaps the subsidy program needs to be clarified. Is it paid to the parents or the providers?”

    CCAP is a benefit for low-income, working parents to make childcare more afordable so they can go to work.

    “Is it the total payment, or just a subsidy?”

    Depends on the providers’ rates. If the subsidy amount is $100 and the provider charges $150, it’s a partial payment, the parnts make up the rest. If the provider charges $100, then the state may be footing the whole bill (for the parent).

    “Who will the union bargain with?”

    Ostensibly, the state bureaucrats who adminster licensing and subsidy programs. AFSCME and SEIU represent those bureaucrats, though, so the unions are proposing to have both bargaining parties belong to the same union. That’s like plaintiff and defendant sharing an attorney in court.

    “What will this union really do for the providers?”

    Based on their performance in other states, and the laws of MN, not much. They’ll take their money, though.

    “What will it do for the non-subsidized providers?”

    The union will ostensibly negotiate for regulatory changes that will impact all childcare providers. They may eventually be able to charge the non-subsidized, non-member providers so-called “fair share” dues under Minnesota labor laws.

    Hope that answers your questions.

  16. Submitted by Heather Falk on 12/13/2011 - 12:48 pm.

    Isn’t it great when journalists write an articles on this childcare union issue they present it as fact when it little more than their own opinions or interpretations.
    First as a HIGHLY trained and WELL paid childcare provider, I take offense to the comment “leaving a poorly paid, unevenly trained underclass to care for the kids.” I chose this career so I could be the one to raise and instill my morals and value into my own children, leaving my college education job behind.
    Second offensive statement “Forget health insurance, retirement and a living wage, family day-care providers had zero say over lots of policies that had a big influence over their work.” Where are the facts of getting any tangible benefit from a childcare union? 3 states have a pathetic, jump through hoops healthcare plane then only covers the provider, not her family and only covers a minimal amount of providers. There is NO retirement plan for childcare providers in other states, and what exactly is a “living wage”, I am self-employed and set my own wage… I have children on CCAP and the parents pay me what THEIR welfare benefit does not. I have plenty of input on how my business is run and policies that effect it, it’s called being involved, we have several lobbyist who are at the capitol working hard for us and if they do a bad job we can fire them and get new ones, un like a union if this EO goes forward, we can’t get rid of the union if they do not do what they claim they will. What business owner isn’t regulated by the state? Maybe all drivers license holders should form a union, because we are regulated by the state, and enforced road laws from the state and no one gave me a voice when texting while driving was implemented and no one came to my house and told me about this new law…ridiculous sounding , so is this union!
    I am a Democrat, by the way and do not hate unions. I am a childcare provider who does not want to be represented by these unions for many reasons, but mostly if this was such a great thing why do they bully, lie and silence us? I don’t want to be represented by such a low moral organization that for 6 years we have been treated as such. I don’t care if their tactics work at the capitol and do generate millions of dollars for CCAP, a union of welfare recipients would make more sense for what they want to accomplish!

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