California Labor Wars
California’s healthcare workers’ wars continue, in the streets, in collective bargaining and in the courts, at a level of conflict not often matched in the US today. More, in these California conflicts, healthcare workers and their unions are as often as not on the offensive.
The new National Union of Healthcare Workers (NUHW) has struck the huge healthcare chain Kaiser Permanente four times now in the past year, twice with support from California Nurses Association nurses. These two walk-outs (in September 2011 and January 2012), 20,000 strikers plus each, rank as the largest but one (the Verizon strike) on the table of recent strikes. At the same time, this Spring, the NUHW has won first contracts – with wage increases and no concessions - at hospitals including Keck Medical Center, University of Southern California; Sutter Health’s California Pacific Medical Center in San Francisco; Santa Rosa Memorial Hospital; the Salinas Valley Memorial Hospital; and Doctors Medical Center in San Pablo.
At Kaiser, NUHW members are refusing to accept demands in deliberately stalled negotiations for concessions by a (non-profit?) corporation that “profited” $2.1 billion last year and pays its CEO George Halvorson $9 million annually (eight pension plans thrown in). And they are doing this while the rival Service Employees International Union (SEIU) has caved in to Kaiser yet again, this time signing a backroom deal that includes concessions demanded by Kaiser in particular in healthcare benefits. The union has agreed to a “Wellness Program” that commits members to (among other things) “holding down the costs of care at KP” and “enhancing the effectiveness and productivity of the organization” –an agreement that sets a very dangerous precedent for unions in California and a primary reason the Kaiser nurses have already been out – in solidarity strikes – twice. All this comes as NUHW members prepare for the upcoming rerun of the big Kaiser election (43,000 service and technical workers) of 2010 – the results of that election having been thrown out by an NLRB judge, based on evidence of widespread misconduct by SEIU.
At the same time, NUHW’s fight with SEIU has gone through another round in the courts. On Wednesday, June 13, in a packed San Francisco courtroom, NUHW lawyers presented oral arguments in the appeal of sixteen former United Healthcare Workers West (UHW) elected officers and leaders and the NUHW. They appealed damages awarded in the 2010 civil suit brought by the Service Employees International Union (SEIU). Dozens more NUHW members and supporters viewed the proceedings on screens outside the courtroom.
The 2010 San Francisco civil case was a sordid episode, another low in SEIU’s most recent adventures. SEIU, to the surprise of few, had trusteed its militant, progressive 150,000 California local, United Healthcare Workers (UHW).
Not content with trusteeship – SEIU seized the assets of UHW, with fired its officers, removed its elected executive board and purged its stewards. It was determined, in the words of its then vice president, “Wall Street” Dave Regan, now UHW president, “to drive a stake through the heart” of the new union, and, more, to see that the former, elected, UHW leaders and staff would “never again work in the labor movement.”[i]
SEIU’s goal, then, was not just to wreck UHW, but to punish its leaders and staff. In the extraordinary trial in Federal Court, 28 NUHW leaders were sued for “damages” – it was astonishing, a vicious assault. SEIU, in a civil lawsuit, demanded of the defendants $25 million in damages. It charged that these people, all good union men and women, had “conspired” (for “personal power and profit”) – for years and all on “company” time – to leave SEIU and found a new union. It claimed they were responsible for “theft, violence, and sabotage;” in so doing, they left contacts open, neglected their duty, were guilty of fiduciary malfeasance.
Originally, SEIU sought the $25 million, based on an array of alleged offences including the alleged illegal actions. But all these were dropped, and the request for damages was reduced to $4 million. The case essentially came down to the charge that the UHW leaders were working against SEIU while still on the payroll and the judge instructed the jury to fix awards accordingly.
The jury – which included not a single union member – found against the defendants; sixteen former UHW leaders were held liable for $725,000; NUHW also $725,000. $1.5 million total, a far cry from the $25 million first demanded, but cruel punishment for sixteen working men and women.
The appeal was argued before a three judge panel of the US Court of Appeals, Ninth Circuit. Oakland attorney Dan Siegel contested the awards in the 2010 trial – “damages” set by the jury. Siegel challenged the basis for these findings – that the UHW leaders had defied “fiduciary obligations” to SEIU leadership - and argued that the judge in the case, William Alsup had repeatedly erred in his instructions to the Jury.
Siegel insisted that the then elected officers and leaders of UHW had the right to contest the trusteeship, including the right to oppose the forced transfer of 65,000 long-term care workers from UHW to another local California, the issue that ultimately was key in SEIU’s case for the trusteeship.
He argued that these officers’ responsibilities were not simply to the SEIU‘s national leadership, then led by Andy Stern, but also to the members of UHW, the people who had elected them, determined the local union’s policies and paid the bills. Indeed they had an obligation to abide by the member’s decisions.
He contended that this fact invalidated the award of damages – these officers and leaders, even as SEIU members, had every right to explain to the local union’s members what rights they had in the weeks between to decision to transfer the 65,000 and, three weeks later, the trusteeship when they were summarily fired.
They were exercising protected speech, free speech, Siegel argued, when they organized meetings to inform UHW members of these rights and choices – including their right to dissent, to decertify, even to form a new union. The case essentially came down to the charge that the UHW leaders were working against SEIU while still on the payroll and the judge instructed the jury to fix awards accordingly.
Siegel also argued that there were larger issues just as important in the long run. What were the responsibilities of local union officers, not just to national leaders but to their members, in particular when these members were in disagreement with national policies?
SEIU lawyer, Leon Dayan, repeated that there was a long-term conspiracy, something the jury had not found in this case, and argued that the duties of the UHW officers and staff to the national and the local were one and the same – hence asserting that the elected local union officers and leaders were essentially no more than an administrative arm of the national union.
Speaking after the hearing, Siegel said the outcome was important for two reasons, first “to remove these entirely unfair judgments, hanging over the heads of the sixteen defendants.” In this he said he was optimistic.
Second, on the larger issues, he said he was worried that the case raised issues that could prove “very dangerous for union activists. It took a law – Landrum Griffin Act, 1959 – in part designed to protect rank and file workers, and turned it on its head, using it as a vehicle for payback against dissenting local union officers and members.”
Back to the streets. At the same time these workers were in court – fighting for the right to have a union, one of their own choosing – nurses at Sutter healthcare were on strike at ten northern California hospitals. The walkout, the fourth strike organized by the union since September, came as union officials and Sutter management continue to clash over sick leave, retirement benefits, health care payments, patient care conditions and other issues.
“Nurses at Sutter facilities are facing an unprecedented attack on their practice the scope of which we have not seen in over 20 years,” said Zenei Cortez, co-president of CNA/NNU. “Nurses everywhere are unifying to resist Sutter’s policies of unprecedented cuts in vital patient services for our communities and deterioration of patient care standards in our hospitals.”
The strike affected 4,400 RNs , as well as hundreds of respiratory, X-ray and other technicians at three Alta Bates Summit Medical Center facilities in Berkeley and Oakland, Mills-Peninsula Health Services hospitals in Burlingame and San Mateo, Eden Medical Center in Castro Valley, San Leandro Hospital, Sutter Delta in Antioch, Sutter Solano in Vallejo, Novato Community Hospital.
"We don't believe that Sutter needs to be demanding these onerous and unwarranted cuts from nurses because they are an extremely profitable operation that operates as what I call J.P. Morgan West," said a California Nurses Association spokesperson. "They're making decisions on what provides the best return for their shareholders, not for patient care," he said.
Following the San Francisco hearing, a delegation of NUHW members, clad in red tee-shirts, headed for a noon rally across the Bay at Alta-Bates Summit. I’m not making this up. This has not been a good month for labor in the US, particularly in Wisconsin where the electoral turn disintegrated, a (predictable) catastrophe. It’s far from all-over, however. The fight-back continues; it’s inevitable in today’s conditions. It may not be so conclusive as some would like, not so romantic – coastal “blockades”, May Day “general strikes” remain wishful thinking, delusionary, however desirable. Still, workers can win, even on their own! They have in Longview; I think they will in California’s healthcare industry. So pay attention. There’s a lot we can learn a lot from them. And they deserve our support.
Cal Winslow is the author of Labor’s Civil War in California, PM Press 2012 (second edition, revised and expanded), an editor of Rebel Rank and File: Labor Militancy and Revolt From Below during the Long Seventies (Verso, 2010), and an editor of West of Eden, Communes and Utopia in Northern California (PM 2012). He is a Fellow at UC Berkeley, Director of the Mendocino Institute and associated with the Bay Area collective, Retort. He can be reached at firstname.lastname@example.org