By: James B. Sherman, Esq. & Chad A. Staul, Esq. 

On December 5, 2011, District Court Judge Dale Lindman issued a temporary restraining order against implementation of Governor Dayton's Executive Order requiring certain licensed daycare providers to vote on whether they wish to be represented by a union.

The November 15, 2011 Executive Order 11-31 requires ballots to be mailed to Minnesota's approximately 4,300 licensed childcare providers who, among other things, accept state subsidies. Oddly, the approximately remaining seven-thousand (7,000) licensed childcare providers in the state that do not meet the Executive Order's eligibility criteria would not be part of the unionization effort.

Therefore, it came as little surprise that on November 28, 2011 those not included took pre-emptive action and filed a lawsuit stating Governor Dayton exceeded his authority by ordering the vote and/or by excluding them in the vote. In issuing the order, Judge Lindman stated he was "bothered" that less than half of those in the in-home child care industry would be unable to voice their opinions through a vote.

Although the Governor agreed to abide by the court order and is now seeking counsel through the Attorney General, it appears that his decision was motivated by the use of political pressure from union groups. Although the judge did not rule on the merits of the Executive Order per se, the issuance of this temporary restraining order is an indication that its effect is in doubt and it is now likely that no vote for the unionization of these works will occur in the foreseeable future.