Labor & Employment Law Daily Personal care assistants seeking union decertification not entitled to up-to-date contact list under Minnesota state laws
Monday, September 21, 2020

Personal care assistants seeking union decertification not entitled to up-to-date contact list under Minnesota state laws

By Brandi O. Brown, J.D.

The employees argued that limited access to such information would stymie decertification efforts, but the court noted that access was not impossible.

In a dispute over the availability of contact information for personal care assistants in Minnesota stemming from union decertification efforts, the Minnesota Supreme Court clarified that the assistants were not entitled to the list they sought from the state agencies under either the Public Employment Labor Relations Act (PELRA) or the Minnesota Government Data Practices Act. They could only access lists that had already been made publicly available and the information they sought had not been. The decision of the court of appeals was affirmed in part, reversed in part, and remanded (Greene v. Minnesota Bureau of Mediation Services, September 16, 2020, Hudson, N.).

SEIU becomes rep. In Minnesota, there are two types of personal care assistants (PCAs) involved in providing care to participants in DHS-operated state programs, those working for an agency and individual PCAs hired by a participant directly under the “self-directed option.” The latter option allows participants to hire a family member, for example, and the family member, in turn, is paid by the DHS through a fiscal intermediary.

Under Minn. Stat. sec. 256B.0711, subd. 4(f), the Medical Assistance provision, the Department of Human Services compiles, to facilitate collective bargaining, a monthly list of the names and addresses of those providers who have been paid for providing direct support services within the previous six months. In 2014, using such a list, the SEIU sought and won the right to represent individual PCAs in Minnesota, under the new PELRA legislation that allowed for such representation (the NLRA generally excludes in-home care providers). It has been the exclusive representative for PCAs since that time.

Group sought decertification, needed names. However, a group of personal care assistants wanted to decertify the SEIU as their exclusive representative under PELRA. In 2016, the group requested the most recent list of PCAs from the two appellant agencies—the Department of Human Services and the Minnesota Management and Budget—so they could get the votes necessary to do so. Instead they received the 2014 list that had originally been provided to the SEIU.

Dispute over contact list makes it to high court. The group’s efforts to obtain the 2016 list ended up in court. They argued that the PCAs were considered “executive branch state employees” for purposes of PELRA and, therefore, as state employees their “personnel data” was publicly accessible under the Data Practices Act. The district court ultimately concluded that the agencies had violated the Data Practices Act.

The court of appeals, however, held that the group was not entitled to the 2016 list under PELRA, but that they were entitled to it under the Data Practices Act. The agencies sought review and the group sought conditional cross-review, which the Minnesota Supreme Court granted. It concluded that the group was not entitled to the list under either law.

“Available” is disputed. This case required the state’s highest court to interpret the PELRA provision, the Medical Assistance provision, and the Data Practices Act. The Medical Assistance provision requires DHS to compile the list, but the PELRA provision, Minn. Stat. sec. 179A.54, subd. 9, addresses access to it. Under that provision, an “employee organization” seeking to become the exclusive representative of individual PCAs must be provided the list when it shows that “at least 500″ of those PCAs support that representation. That statutory subdivision also provides, “When the list is available to an employee organization under this subdivision, the list must be made publicly available.”

However, the parties disputed what it meant for a list to be “available” to an employee organization, with the group arguing that an actual request was not necessary, only that the list could have been requested by the organization. The court, however, found the meaning to be plain and not susceptible to their expansive reading. “Reading the PELRA provision in context as a whole,” the court explained, “it is clear that a PCA list becomes available to an exclusive representative or employee organization upon request.” Therefore, an actual request must have been made for the list to be publicly available, which was the position initially taken by the agency. “Accordingly,” the court elaborated, “a list is available to the public if (1) an employee organization requests the list after demonstrating sufficient support, or (2) if the exclusive representative requests the list.”

Not impossible to decertify. Although the group argued that decertification would not be possible based on this reading, the court was unconvinced. While it was true that if the exclusive representative had not requested the most recent list, the provision made it difficult for PCAs to seek decertification (because of outdated information), the court found that the group “falsely equate difficulty with impossibility.” Its holding, it explained, “does not foreclose all paths to decertification.”

Not really state employees. With regard to the Data Practices Act, the group argued that PCAs are state employees and, therefore, their “personnel data” is public. However, their argument for employee status was based on PELRA and the language of that Act was clearly permissive only, the court explained. It did not require the treatment of those providers as employees for any purpose other than collective bargaining. Under the Data Practices Act, the information sought by the assistants was not “personnel data” and, in fact, the data compiled and maintained by DHS on PCAs is different from the public “personnel data” that state agencies maintain on state employees under the Act.

Moreover, “for all practical purposes,” the court explained, PCAs are “more accurately categorized as employees of a particular participant, not employees of MMB or DHS.” The court also explained that it would decline to treat the information in the list as public personnel data under the Act because to do so would create a conflict with the PELRA provision. Finally, the court considered, and rejected, the argument that the group was entitled to the 2016 list because it was “presumptively public” under the Data Practices Act as “data collected by a government agency.” That presumption was defeated by the PELRA provision.

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