Appeals panel lets Minnesota child care union drive proceed by affirming ruling of lower court

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ST. PAUL, Minnesota — A federal appeals court lifted a legal obstacle Thursday to a unionization effort affecting thousands of Minnesota home day care operators.

The 8th Circuit Court of Appeals — which covers seven Great Plains and Midwest states — affirmed a ruling by a judge who dismissed a pair of lawsuits seeking to block the drive. That judge ruled last summer the lawsuits were premature, and an injunction that had been in place pending the appeal was dissolved.

This probably isn't the last word in the case. A new lawsuit was filed this week to stop a companion drive that could organize personal care attendants for the elderly and disabled.

The three-judge appeals court said the child care case isn't ready to be decided on its merits because a union hasn't been formed, so the plaintiffs haven't experienced actual or impending harm. The court drew a distinction between this lawsuit and a recent U.S. Supreme Court ruling in an Illinois case, in which the court said personal care attendants in the state can't be obligated to pay union dues.

"Here, an election is not currently scheduled. No organization trying to obtain certification through a card check program. No organization has filed a petition for election. Plaintiffs have not shown any significant practical harm from awaiting a petition," Appeals Judge William Benton wrote.

"The election of an exclusive representative is not certainly impending, and may not occur at all," he said.

The lead plaintiff in the case, Jennifer Parrish, told her Twitter followers that the case could be refiled later once the union drive moves closer to a certification election.

The head of the National Right to Work Foundation, which is giving free legal representation to the child care providers and the personal care attendants, said there was a silver lining in an otherwise disappointing decision.

"The court's ruling today means that the homecare providers' suit is indeed ripe for review because those providers are under imminent threat of unionization, with the unionization election starting tomorrow," group president Mark Mix said.

The Democratic-controlled Legislature and Gov. Mark Dayton approved the union push in a 2013 bill. The potential union would bargain with the state over reimbursement rates, training and working conditions.

In fighting to stop the union, a group of in-home day care providers argued it would violate their First Amendment rights because they would have to pay dues even if they don't support the union. They contend a union is misplaced for independently owned home day cares.

The union pushing to organize the operators — the American Federation of State County and Municipal Employees — must submit enough petitions to trigger an election. AFSCME spokeswoman Jennifer Munt said the union would respond to the ruling later Thursday.

The proposed child care union would cover some 12,700 providers who take care of children who are subsidized by the state.

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