Mackinac Center Legal Foundation clients Sherry Loar, Paulette Silverson and Michelle Berry stand firm at the Michigan Supreme Court.
arrangement born in subterfuge, the forced unionization of Michigan's day care
providers is certainly in the spotlight, thanks to Patrick Wright, director of
the Mackinac Center Legal Foundation, and the Mackinac Center communications
staff. The Center's battle against the unconstitutional arrangement is gaining
allies in the courtroom — and in the court of public opinion.
The campaign against the arrangement began last year when
Wright filed suit against the state Department of Human Services on behalf of
three day care providers, demanding that the department cease withholding
so-called "union dues" from state subsidies paid to the women and to other
independent day care contractors — including thousands of small-business owners — for providing day care services to low-income parents. The DHS, Wright
observed, could not declare private-sector day care contractors "public
employees" subject to "union dues" without an act of the Michigan Legislature.
After being rebuffed by the Michigan Court of Appeals, Wright appealed to the
state Supreme Court.
In April, two additional groups filed "friend of the
court" briefs on behalf of the Mackinac Center's clients: the 350,000-member
National Federation of Independent Business and the nonprofit American Civil
Rights Union. The NFIB emphasized that unionization of day care providers would
mean "that any private sector business that accepts subsidies from the State
could be similarly forced into a public sector union." The ACRU agreed,
writing, "This [unionization] is just the beginning of the possible mischief."
On May 12, about a month later, the Department of Human
Services responded to the MCLF's suit with an evasive defense that Wright later
described as "a thin hodge podge of technicalities." Indeed, although the DHS
was permitted 50 pages to make its case to the court, it filed just 12, and it
never tried to show that the day care providers really are public employees.
Instead, the department
lamely contended that the Center's clients should have challenged the union's
certification with the Michigan Employment Relations Commission, which oversees
labor relations with public employees. This logic was circular, and Wright
drily noted in his written response to the court that as private contractors,
his clients "had [no more] obligation to resort to that forum than they would
have had if the issue had been brought before a Superior Court Judge in Nome,
A Michigan Supreme Court decision could come as early as
the end of July. In the meantime, media interest in the case remains high. On
March 31, the Lansing State Journal editorialized against the day care
unionization, observing that if the indirect receipt of state subsidies was
sufficient to convert private businesses into public employees, homeowners who
receive a property tax exemption could be unionized as well. On April 20, the
Detroit Free Press published a lengthy, front-page, above-the-fold article on
MCLF client Michelle Berry. Shortly after, Frank Beckmann of WJR AM 760
interviewed MCLF client Sherry Loar on his show and subsequently wrote about
the case in his April 9 Detroit News column, decrying "the incestuous
relationship between the Granholm administration and labor unions in Michigan."
The Macomb Daily and Oakland Press also editorialized against the forced
unionization, while The Detroit News weighed in with an editorial about
Wright testified about those remedies before a Senate
committee and subcommittee on three Senate bills that would end the
unionization of day care providers (there are similar bills in the Michigan
House). He also discussed the possibility of defunding the ersatz "employer" of
the day care providers, the Michigan Home Based Child Care Council, a shell
corporation cobbled together largely to give the union someone to "bargain"
The child care council's thin façade was exposed by Center
Communications Specialist Kathy Hoekstra. Using the Freedom of Information Act,
Hoekstra unearthed a lengthy e-mail exchange in which a union official stated
that the council — a titular "employer" — was created "at the recommendation of
Michigan AFSCME and the UAW with the support of the [governor's] Executive
Office." The official also slipped by describing day care providers as "independent
contractors" rather than government employees, and he admitted, "This
[unionization] is an experiment with little guidance from the statute and
virtually no administrative or judicial precedent to follow."
Hoekstra published the e-mail in a video she produced as
part of an ongoing series on the case, and a similar story appeared in the
Mackinac Center's online publication, Michigan Capitol Confidential, on May 3.
When this lawsuit began 10 months ago, the Center was the
only organization objecting to the forced unionization of Michigan's
independent day care contractors. But due to the hard work of Wright, Hoekstra
and the entire Center staff, momentum is growing against this tragedy of
politics and bureaucracy — and the Center's clients are no longer alone.