Friday, May 24, 2013

Minnesota's Child Care Unionization Law: Evolutionary, not Revolutionary

The most contentious issue of the recently-completed Minnesota legislative session was a bill to allow in-home child-care providers and personal care attendants who receive subsidy payments from the state to vote on unionizing. Acrimonious debates in the Senate and the House dragged on for hours and hours, dozens of amendments were introduced in attempts to de-rail the legislation, and the rhetoric was heated. In the end, the bill (barely) passed. But setting aside the rhetoric, what does this new law really do?

First, the Act gives child-care providers and personal care attendants the status of state employees in a very limited way. Specifically, these workers will be treated like other state employees just for the purposes of determining whether they want a union to represent them. This means that if a union can demonstrate that at least 500 workers want it to represent them, the union will be given the names and addresses of all of the workers in the potential bargaining unit. Then, if the union can show that 30 percent of the workers want representation, a secret ballot election will be conducted. If the union receives a majority of the votes cast, it will be certified as the representative of the workers.

None of this is revolutionary. It is essentially the same process that has been used in the U.S. private sector since the 1930s, and it the same process used in much of the U.S. public sector since the 1960s. Contrary to some of the rhetoric, this new Act does not force unionization. Rather, it simply gives these workers the right that most traditional workers have--the right to vote on whether to be represented by a union or not.

Second, if a union achieves certification through this very common process, the Act obligates the State to meet and negotiate in good faith regarding "grievance issues, child care assistance reimbursement rates...and terms and conditions of service." This good faith bargaining requirement is again a standard provision of U.S. labor law. Moreover, the workers cannot strike (another common feature of public sector labor relations) and like other collective bargaining agreements negotiated by the State, any agreements need to be approved the State legislature. So again, much of this is quite standard.

Where it gets interesting is in the list of bargaining subjects: grievance issues, child care assistance reimbursement rates, and terms and conditions of service. This is similar to what's found elsewhere in Minnesota public sector labor law, but with two intriguing features. One, it will be interesting to see how "terms and conditions of service" is interpreted given that the State is not the employer of the workers. Will this mean wages, benefits, scheduling, and other issues that are important in a traditional employment relationship? Or the terms of service between the State and the providers?

Two, child care assistance reimbursement rates are explicitly included as a subject of bargaining. This makes sense in that these rates are clearly within the domain of the State and they have an important impact on the working conditions of the workers and the quality of child care. Yes, this is an unusual subject of bargaining, but this is an unusual employment relationship. Our public policies on work have been too slow to adapt to the rise of these non-standard employment relationships and we need more experimentation and flexibility with alternative ways to gives these workers a voice.

But this raises another issue--is a law needed to achieve this? In some respects, a union of child care workers is essentially a lobbying group that advocates for improved child care policies. This can be done without formally unionizing. Indeed, nursing homes unions lobby the legislature for improved conditions for nursing home workers even though they don't represent all nursing home workers, and in this legislative session they won a 5 percent wage increase.

So what's different with the child care law? First, it gives unions access to the names and addresses of workers. This is largely a logistical issue. Second, it pre-commits the State to bargain with the union if it is certified. But shouldn't the State be listening to child care workers and others in the industry anyways? And third, it allows a union to negotiate a collective bargaining agreement. This is significant because it would allow the negotiation of a fair share clause in which all of the workers would need to pay partial union dues. This last issue is always a controversial one. A cynic might say it's the real reason for Minnesota's new child care unionization law. The unions involved, however, have the opportunity to prove the cynics wrong.

Time will tell what actually happens. But in any case, labor law and the accompany institutions and practices need to continue to evolve to better include non-standard employment relationships and forms of work that have traditionally been invisible and undervalued.

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