The Magazine

Stealth Unionization

How 40,000 home day care providers in Michigan were forced to start paying union dues.

Dec 28, 2009, Vol. 15, No. 15 • By MICHAEL D. JAHR and PATRICK J. WRIGHT
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The Mackinac Center's public-interest law firm decided to make this violation of Loar's civil rights its first case, and it filed suit against the Department of Human Services at the Michigan Court of Appeals in September (at this writing, the court has taken no action). The argument was simple: The only constitutional way to convert people into public employees in Michigan is through an act of the state legislature--not through a rigged agreement between two government agencies each of which lacked the power to do this itself. In short, the department's withholding of "dues" is illegal.

Of course, there are other objections to this "unionization." Common sense tells us that home-based day care employers are not employees, and that the parents who select and pay them are their customers. Even if some of those parents receive a government subsidy to help defray the cost of day care, the state does not "employ" the day care owners any more than the federal government "employs" grocery store owners who accept food stamps. In fact, it is doubtful that even the state -legislature could convert all these day care providers into a collective bargaining unit. Compulsory unionization is permitted to override citizens' First Amendment right of free association only in the interest of labor peace. That doesn't apply here.

While Michigan's mechanism for creating more than 40,000 new union members is unique, the general effort is not. For several years, unions like the American Federation of State, County and Municipal Employees and the Service Employees International Union have been working to unionize day care workers in a number of states, sometimes even battling over jurisdictions. We have identified 14 states where unionization of day care providers has occurred.

An element common to many of these endeavors is subsidy money, which in large part originates from federal Temporary-Assistance-for-Needy-Families block grants. In Michigan, despite the fact that the state labor commission recognized the bargaining unit as all home-based day care providers, "dues" are taken only from those who receive subsidy checks. In essence, the union has organized against the money.

All this turns the concept of collective bargaining on its head. As Loar says: "How can I be in a union? In my house, I'm both labor and management." Michelle Berry, another Mackinac Center client, points out that she's seen no benefits from her imposed union membership: "There's no communication. We have a deduction taken from a check, and where that goes, I have no clue."

The notion that these independent entrepreneurs are government employees simply because a few of their customers receive government aid means that attempts to unionize doctors, landlords, and independent grocers can't be far behind. Still, even state agencies and powerful unions should have to follow the law. If union and government officials want to enact unfair and destructive policies, they should have the decency to do it without violating the state and federal constitutions.

Patrick J. Wright is director of the Mackinac Center Legal Foundation, and Michael D. Jahr is senior communications director for the Mackinac Center for Public Policy.