A Battle for Labor's Future

At the 1935 AFL convention, John L. Lewis of the Miners punched Big Bill Hutcheson of the Carpenters, a fight that marked the formation of the CIO and its split from the AFL. Today a similar fight is going on within the Service Employees International Union (SEIU), perhaps the premier labor union of our time. It's a fight that may have consequences as dramatic for labor as that 1935 battle, but a fight that (so far) is being followed mostly by labor insiders.

SEIU, headed by Andy Stern, is the nation's fastest growing, most visible, most politically potent labor union. Almost every story about SEIU is about some new way that it is on the offensive, launching one or another surprising new initiative, demonstrating its power and creativity. But this is a story about how SEIU is on the receiving end, seemingly outflanked by a new breakaway union, the National Union of Healthcare Workers (NUHW), which appears to be winning unprecedented support from workers and leaving SEIU flat-footed—although SEIU's power and resources may yet enable it to win.

Talking to leaders of the two sides in this dispute is a window into two different visions of the labor movement. When NUHW leaders talk, it is all about the workers and what the workers want; when SEIU leaders talk, it is about the need for labor to be powerful. If a union is about power and raising wages "for" workers, SEIU can make a compelling case. If a union is about building a better world and developing people's ability to control their own lives, not once every four years, but day-to-day at the workplace—NUHW is far more appealing. The remarkable fact is that in California workers are choosing to try to build something more democratic and responsive, rather than stick with the security and power of the national SEIU.

Background To The Battle

SEIU's strength, and perhaps its Achilles heel, has been its strong central control. The national leadership and staff include some of the smartest, toughest, most creative people around. When they see an opportunity they seize it; results matter more than tradition or long-standing labor etiquette. If a local union is stagnating, the national union will work with the local union and prod it to develop an effective organizing program, so that more workers can be brought into the union and improve their conditions. If the local union still doesn't improve, the national SEIU will "trustee" the local—that is, seize all of the local's assets, remove the local union's elected leadership and much of its staff, and replace them with people appointed by the central SEIU leadership. Scholars such as Kim Voss and Rachel Sherman have argued that it is precisely this process, trusteeship and the threat of trusteeship, that explains the vibrancy of SEIU. Pressure from above, combined with SEIU's willingness to shake up non-performing union locals and SEIU's appointment of staff and leaders with experience in other social movements, has transformed labor.

SEIU President Andy Stern—photo by Jim West

Such a system can be a source of strength, but also of weakness, undercutting member involvement and control of the union. A majority of the current executive board of the national SEIU are people who did not work their way up in a local, winning elections and building a base. Instead, they were either hired as members of SEIU staff or appointed to head trusteed or merged locals and then subsequently (with the advantages of incumbency and a record of performance) elected to lead the local. These people owe their positions to selection from the top, not building a base from below. Thus, when SEIU national leaders refer to democratic decisions by the executive board, this is strictly speaking true. But it's rather as if half the U.S. Senators had begun their careers by being appointed to office—and all by the same person.

This process is a temptation to abuse. What happens if a strong local—democratic, innovative, and growing rapidly—challenges the authority and strategy of the national SEIU leadership? In February 2008, Sal Roselli, president of United Healthcare Workers West (UHW), a 150,000-member local in California, did exactly that. A year later, this past January 27, Stern and SEIU trusteed UHW. Although, in almost every other case, the appointed trustees take firm control of the new local and a Stern ally ends up in long-term control of the local, UHW is the spectacular exception.

Instead of fighting from within, many of the stewards, top leadership, and workers of UHW formed a new union, the National Union of Healthcare Workers (NUHW), and started fighting SEIU from without. Within 6 weeks, sub-parts of the local covering 91,000 members—a strong majority of the membership—filed legal petitions to leave SEIU and join NUHW. SEIU contested those filings, but SEIU's argument has so far focused not on what workers want, but on whether such a filing may be made at this time or must wait until the legal window opens, a window that will be different for each of the hundreds of worksites covered by UHW.

The split grew out of a multi-year series of disagreements. As NUHW leaders tell it, these disagreements centered around member control and a willingness to fight for the best possible deal. Roselli enumerated a list of examples, including that Stern "silenced workers' voices in bargaining with the California Nursing Home Alliance by directing International Union representatives to meet with our employers behind our backs."

As SEIU leaders present the issues, in a world where 93 percent of private sector workers are without a union, any union that focuses only on making gains for its own members is being selfish and short-sighted, trading immediate gains for some for the long-run power needed to make major improvements in all workers' conditions and to exercise real leverage in creating a better society. This is a choice, SEIU leadership says, between "justice" unionism and "just us" unionism.

People in NUHW (all of whom were once in UHW), argue this was not the issue, that the UHW local was committed to growth, and was in fact the fastest growing local in SEIU. John Borsos, until the trusteeship a vice-president of UHW, says that SEIU presents the issue as if UHW were only interested in California, but "that was never our position. Our position was that the leaders can't decide, they can't manipulate behind people's backs. If you want workers to make concessions to win long-term power, you have to ask the workers, explain the issues, answer questions, have a debate, and have it be their decision." In one case, the union had power over the employer, Tenet, and could have won bargaining rights and a good contract for current members. "The problem," he argues, "was that SEIU [national leaders] did not know how to bargain and they signaled to the employer that SEIU was seeking a deal at all costs, which gave Tenet the power to ratchet SEIU down."

From Public Break To Trusteeship

Sal Roselli of the NUHW—photo by Mike Rhodes

Sal Roselli was both the president of UHW and an appointed member of the national executive committee, an inner circle of SEIU leaders. As UHW members and leaders increasingly disagreed with the national SEIU's strategy, Roselli felt that the principled thing for him to do was to resign from that inner circle position and voice his opposition. In February 2008 Roselli did so and made public his letter charging that SEIU was going in the wrong direction.

In Greek tragedy, well in advance of the conclusion, the audience can see the inevitable outcome, an outcome that is the result of a tragic flaw in a generally heroic and noble figure. For many of us in labor, this past year had exactly that quality. You knew what was going to happen—national SEIU leadership would trustee UHW—and you knew how damaging it would be, but there seemed no way to prevent it. Bill Fletcher, one of the most perceptive analysts of labor, said that SEIU trusteeing UHW would be like the United States invading Iraq—easy to do, profoundly damaging to both sides, and creating a quagmire that would cause pain for years.

In May 2008 labor-friendly academics, including Noam Chomsky and Howard Zinn, sent a letter to SEIU President Andy Stern that said in part, "We believe that there must always be room within organized labor for legitimate and principled dissent.... In our view, [putting UHW under trusteeship] would have negative consequences for the workers directly affected, the SEIU itself, and the labor movement as a whole. We strongly urge you to avoid such a tragedy." A group of 49 SEIU local leaders sent a response letter saying, "We agree that trusteeships should never be used to limit democratic debate in any union. In the case of SEIU, your letter addressed a straw man, since no such retaliatory trusteeship is under consideration nor would we ever vote to approve one."

Not long thereafter a hearing on whether to trustee the local was held. Extensive charges of wrongdoing by the local were aired—centrally that it had put money aside with which to defend itself should the national SEIU leadership decide to trustee the local. After some months of low-intensity warfare and a trusteeship hearing chaired by the respected labor scholar and former Secretary of Labor Ray Marshall, a lengthy, complicated, and contested report found that the charges of wrongdoing did not warrant trusteeship, but that if the local did not immediately agree to have 40 percent of its members sent to another local, that would warrant trusteeship.

Contrasting Views

The trusteeship imposed on January 27 was no surprise. The SEIU national leadership removed the elected leadership and seized control of all of UHW's assets, whether buildings or money. Existing UHW employees had to, in effect, re-apply for their jobs. Most were either fired or resigned. The surprise was that instead of fighting from within as expected, UHW leaders and staff resigned and formed the NUHW, a union entirely independent of SEIU. That rival union—in some sense a new entity, in some sense the old UHW under a new name—then began vigorously contesting for membership. According to NUHW, within 6 weeks at 350 workplaces with 91,000 workers, a majority of workers had signed cards indicating that they wanted to leave SEIU and join the NUHW.

Under U.S. labor law, there are legal limits on when workers can leave one union and join another. Thus, not all UHW members had the (immediate) legal option of leaving UHW for NUHW, even if they wanted to do so, and SEIU and the new NUHW disagreed about which workers did and did not have the legal possibility. For private sector workers those legal disputes are decided by the National Labor Relations Board; for public sector disputes they are decided by a California labor board with similar, but by no means identical, rules.

Leaders of the two sides in this dispute present dramatically different views of the situation. Dave Regan, an international executive vice-president of SEIU, and one of the two trustees appointed to take over and run UHW, argues that, "The point of the other organization is to divide UHW up and take members out of a large and powerful organization and put them into one with no resources and no power." NUHW claims of 91,000 members are irrelevant, Regan argued, because 65,000 of those workers are at Kaiser or Catholic Healthcare West, and the NLRB has already ruled those workers can't legally switch unions at this time. "So the NUHW universe is down to 25,000 members." Regan argued that if NUHW forced elections at worksites, workers wouldn't just be making a choice between two unions—the ballot will also offer the choice of no union. This could potentially end up with one-third of the 25,000 members having no union, one-third NUHW, and one-third UHW. "Will that improve conditions for workers? Even if NUHW leaders are totally successful and they walk out with 25,000 members, how is that making workers stronger?"

NUHW's John Borsos thinks in different terms, emphasizing not power, but what workers want. "When we filed [worker signatures] on Catholic Healthcare West, and the NLRB ruled that the contract was closed, SEIU thought that was a victory. That's not a victory, that's a problem. Within seven days of the formation of NUHW a majority of workers said they didn't want to be part of SEIU. How can it be a victory to force them to stay in?" NUHW has filed a legal brief arguing that the 45,000 Kaiser workers are legally entitled to switch unions now, rather than having to wait until the contract expires in October 2010, but even if the NLRB rules against them on that, "We will be able to win elections and move forward." In Borsos's view, "We filed petitions covering 91,000 workers at 350 worksites. SEIU filed to block us at all but one of those sites, Alameda Hospital, where they thought they would win. So clearly SEIU is not confident of winning any of the others." Borsos contends that, if SEIU really believed in majority sign-up, one of the planks of the SEIU-supported Employee Free Choice Act, then SEIU would agree to let a third-party arbitrator decide if NUHW has demonstrated support from a majority of workers.

Trustee Regan vigorously disputes that: "I am very confident that over time we will be overwhelmingly successful in keeping every single member in UHW.... NUHW is talking about majority sign up as if we could agree to it, but there is a third party here, the employers, and that is not a decision we get to make." In his view, NUHW leaders are weakening the labor movement: "Their behavior right now is no different from that of the National Right to Work Committee. Ultimately, they are making it easier for employers to displace the union."

For people in NUHW, the choice is and should be up to the workers: "Rank-and-file workers must make the basic decisions." Members should elect stewards and bargaining teams; any member should be able to attend contract negotiations. Regan feels that, "Democracy and member empowerment has nothing to do with what's taking place. This is not a debate about some principle. This is real. Real people are being asked to risk everything. Those folks could lose their union and end up being totally vulnerable." Maybe workers have signed cards, but "Don't get fixated on the cards; I can't understand why people are so fixated on the cards." The best option is to prevent an election, since an election consumes time, energy, and resources, and it means the risk of ending up with no union. Therefore, "We will not relinquish our position anywhere.... If we have to go to elections, we will and we will win. At Fresno, we will stomp NUHW in that election. Workers are going to say, 'I ought to put my job at risk to join an organization that has no members and no resources?' We will make it clear that members should not have to take that risk."

Labor Visions And Divisions

If NUHW gets bogged down in legal battles with SEIU and loses worker support in the process, perhaps few workers will end up as long-term members of the new union and these events will be a minor blip in SEIU's march from strength to strength. In this struggle, the SEIU has important advantages: deep pockets, a large, talented, and experienced staff, a phalanx of lawyers, an impressive public relations apparatus, and political clout.

An example of SEIU's power, and perhaps also of its assessment of how serious a problem it faces, is a surprise March agreement between SEIU and the California Nurses Association (CNA), two groups that have been battling each other for 15 years. The CNA had been paying the health insurance costs for NUHW staff. As part of the agreement with SEIU, CNA promised to no longer provide any support to NUHW. In order to reach agreement, SEIU basically gave away the store to CNA, agreeing that SEIU would no longer try to organize nurses (except where drives were already under way).

But the NUHW appears to have something at least as important as SEIU's resources: the support of the workers. In just about every case where workers are legally permitted to choose between SEIU and NUHW, workers chose NUHW. The old UHW appears to have built a strong network of stewards and many of those stewards appear convinced that SEIU is not the way forward. Angela Glasper, an optical services clerk at Kaiser Antioch, reports that at her unit there were 52 stewards and those people are supporting NUHW; SEIU has only been able to recruit 4. The people workers most trust and respect are their own co-workers. The only way NUHW could get so many workers signed up so quickly is by relying on workplace leaders. In turn, relying on them at a time of stress will develop their capacities and increase their commitment to the union.

There's a logic to SEIU's focus on power-through-unity, although SEIU clearly did not find the argument compelling at the time it formed Change to Win, nor has it prevented SEIU from supporting UNITE's (formerly Union of Needletrades, Industrial and Textile Employees) wish to leave HERE (Hotel Employees and Restaurant Employees). And it's far from clear that the historical record supports the claim. Unions grew rapidly in the 1930s and 1940s when the AFL and CIO battled each other. They declined after the AFL-CIO merger and have staged a very limited revival since the formation of the 2005 labor coalition Change to Win.

SEIU leaders believe the problem is that the old UHW leadership misled workers. John Borsos thinks that SEIU leaders "did not believe that this was a member-led movement. The members were way ahead of the leadership on this; for a year now they've been pushing us to get out of SEIU. When SEIU trusteed UHW they took over the building and the bulletin boards [at each worksite], and they seem to think that is the union, but the union is the members, and SEIU hasn't and can't take over the members."

The battle between these two unions will definitely produce some blood on the floor and name calling. There is no question that employers will be delighted and will find ways to quote each side against the other. But I suspect the battle will also leave both unions stronger and more democratic. If democracy and a larger vision are central to unions, NUHW's challenge could be the best news we've had in years. And perhaps—as happened in the 1930s—a battle between unions, combined with the greatest economic crisis in a couple of generations, will again lead to a labor upsurge.