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Bierman v. Dayton

United States District Court, D. Minnesota

August 20, 2014

TERESA BIERMAN, et al., Plaintiffs,
GOVERNOR MARK DAYTON, in his official capacity as Governor of the State of Minnesota, et al., Defendants.

Aaron B. Solem and William L. Messenger, National Right to Work Legal Defense Foundation, and Craig S. Krummen, Winthrop & Weinstine, PA, Counsel for Plaintiffs.

Alan I. Gilbert and Jacob D. Campion, Minnesota Attorney General's Office, Counsel for Defendants Governor Mark Dayton, Josh Tilsen, and Lucinda Jesson.

Peder J.V. Thoreen and Scott A Kronland, Altshuler Berzon LLP, and Brendan D. Cummins, and Justin D. Cummins, Cummins & Cummins, PLLP, Counsel for Defendant SEIU Healthcare Minnesota.


MICHAEL J. DAVIS, Chief District Judge.


This matter is before the Court on Plaintiffs' Motion for an Expedited Preliminary Injunction. [Docket No. 10] The Court heard oral argument on August 19, 2014. For the reasons that follow, Plaintiffs' motion is denied.


The Court will not interfere with an ongoing election based on Plaintiffs' fear about what the outcome of that election might be. Based on a legally enacted Minnesota law, homecare providers have the right to vote in the current secret ballot election to determine whether a majority desire SEIU to be their exclusive representative. The individual homecare providers are independent actors who will exercise their own free will to decide how to vote. This Court cannot predict how 27, 000 individuals will choose to vote. Under the law, the election must proceed.

If, after all the votes are counted, the SEIU is certified as the exclusive representative, Plaintiffs may renew their challenge to that certification to this Court. At this time, their challenge is premature.


A. Factual Background

1. Minnesota's Homecare Program

The State of Minnesota has several programs through which it pays homecare providers to deliver vital "direct support services" to individuals with disabilities or the elderly. See Minn. Stat. § 256B.0711, subd. 1(b). These support services include assisting with the "activities of daily living, " such as "grooming, dressing, bathing, transferring, mobility, positioning, eating, and toileting, " and the "instrumental activities of daily living, " such as "meal planning and preparation; basic assistance with paying bills; shopping for food, clothing, and other essential items... and traveling, including to medical appointments and to participate in the community." Minn. Stat. § 256B.0711, subd. 1(c); § 256B.0659, subd. 1(b), (i).

The recipients of homecare, the participants, have the authority to choose and supervise their own providers; but the Minnesota Commissioner of the Department of Human Services retains the authority to set the economic terms of employment for the individual providers. Minn. Stat. § 256B.0711, subd. 1(d), subd. 4. The Commissioner has authority to establish "compensation rates, " "payment terms and practices, " "benefit terms, " "orientation programs, " "training and educational opportunities, " a "public registry" of individual providers available for work, and "other appropriate terms and conditions of employment governing the workforce of individual providers." Minn. Stat. § 256B.0711, subd. 4(c).

2. The Public Employment Labor Relations Act

Minnesota's Public Employment Labor Relations Act ("PELRA") gives public employees "the right by secret ballot to designate an exclusive representative to negotiate... the terms and conditions of employment with their employer." Minn. Stat. § 179A.06, subd. 2. If a union presents the Commissioner of the Bureau of Mediation Services ("BMS") with a petition representing that at least 30 percent of the proposed bargaining unit desire representation by that union, then the union may obtain a certification election. Minn. Stat. § 179A.12, subd. 3. If the union then receives a majority of the votes cast in the certification election, the BMS Commissioner will certify that union as the exclusive representative of all employees in that bargaining unit. Id., subd. 10.

Once a union is certified under PELRA, the public employer "has an obligation to meet and negotiate in good faith with the exclusive representative... regarding... the terms and conditions of employment." Minn. Stat. § 179A.07, subd. 2. For state employees, any agreement reached must be presented to the Minnesota legislature for approval or rejection. Minn. Stat. § 179A.22, subd. 4.

If a union is certified under PELRA, the employees in the bargaining unit are not required to become members of the union: PELRA gives employees "the right not to... join such organizations" and makes it an "unfair labor practice" for public employers or employee organizations to "restrain[] or coerce[]" employees in the exercise of that right. Minn. Stat. § 179A.06, subd. 2; § 179A.13, subds. 1, 2(1), 3(1). Also, the appointment of a PELRA exclusive representative does

not affect the right of any public employee or the employee's representative to express or communicate a view, grievance, complaint, or opinion on any matter related to the conditions or compensation of public employment or their betterment, so long as this 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.

Minn. Stat. § 179A.06, subd. 1.

Under PELRA, unions are permitted, but not required, to assess fair share fees to non-members. ...

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