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Recognition of exclusive representative didn’t impinge Minnesota homecare providers’ freedom of association

By Ronald Miller, J.D.

Minnesota legislation that treats homecare providers as state employees for purposes of the Public Employment Labor Relations Act (PELRA) and allows them to select a union as an exclusive bargaining representative, did not violate dissenting homecare providers’ right to free association, ruled the Eighth Circuit. The current version of the PELRA allows the homecare providers to form their own advocacy groups independent of the exclusive representative, and it does not require any provider to join the union. Finding that under Knight, the state had “in no way’ impinged on the providers’ right not to associate by recognizing an exclusive representative, the appeals court affirmed the judgment of the district court (Bierman v. Dayton, August 14, 2018, Colloton, S.).

PELRA extended to homecare providers. In 2013, Minnesota enacted a statute that extended the state’s PELRA to persons who provide in-home care to disabled Medicaid recipients. Under the Individual Providers of Direct Support Services Representation Act, homecare providers were treated as state employees for purposes of the PELRA. Under the statute, if public employees select a representative, then the state employer must confer and negotiate exclusively with the representative union. Employees, however, need not join the union, and remain free to communicate with the state independent of the exclusive representative, so long as their activity “is not designed to and does not interfere with the full faithful and proper performance of the duties of employment or circumvent the rights of the exclusive representative.”

The Act specifies that no agreement reached between the state and the exclusive representative may interfere with the rights of Medicaid recipients “to select, hire, direct, supervise, and terminate the employment of their individual providers; to manage an individual service budget regarding the amounts and types of authorized goods and services received; or to receive direct support services from individual providers not referred to them through a state registry.”

Election petition. In June 2014, SEIU Healthcare Minnesota presented the Minnesota Bureau of Mediation Services with over 9,000 signed union authorization cards from homecare providers requesting that it serve as their exclusive bargaining representative. The homecare providers submitted an official election petition. The union agreed that it would not seek mandatory fees from providers who did not join the union. After receiving notice of the upcoming election, a group of parents who provide homecare services to their disabled children sued the governor and other state officials, and the union, alleging that the 2013 Act violated their freedom of association under the First and Fourteenth Amendments. They sought to enjoin the state from conducting the union election and certifying the union as their exclusive representative.

A district court refused to enjoin the election, and the SEIU was selected as the homecare providers’ exclusive representative.

Standing. On appeal, the state contended the homecare providers lacked standing to sue. Article III standing requires them to establish injury in fact; that is, the homecare providers must show that they have suffered a concrete and particularized injury to a cognizable interest. The providers alleged, for one that they suffered an impingement on their freedom not to associate with the union as exclusive representative. The appeals court concluded that their complaint could be fairly construed to also assert that the providers were harmed by the practical effect of the state’s decision to recognize an exclusive representative.

As the Supreme Court recognized in Minnesota State Board of Community Colleges v. Knight, the “unique status” of an exclusive representative “amplifies its voice” in the bargaining process. By definition, the voices of those who disagree with the exclusive representative are correspondingly diminished. Whether or not this effect on the voices of the homecare providers violates a constitutional right, the Eighth Circuit concluded that it was sufficient to constitute an injury in fact for purposes of Article III standing.

Knight controls. On the merits, the homecare providers contended that PELRA creates a “mandatory agency relationship” between them and the exclusive representative that violates their constitutional right to free association. However, this argument was foreclosed by Knight, which held that the state “in no way restrained” instructors’ freedom to associate or not to associate with whom they please. Instructors were “free to form whatever advocacy groups they like” and were “not required to become members of the union.”

The appeals court found no meaningful distinction between this case and Knight. According to Knight, the state has “in no way” impinged on the providers’ right not to associate by recognizing an exclusive negotiating representative. The current version of the PELRA allows the homecare providers to form their own advocacy groups independent of the exclusive representative, and it does not require any provider to join the union. Accordingly, the judgment of the district court was affirmed.