NUHW, SEIU, the Law and the Future of American Labor
It is now nearly three years since 100 prominent university teachers, labor educators and activists appealed to then SEIU President Andy Stern to abandon plans to place the 150,000 member California healthcare local union, United Healthcare Workers-West (UHW) in trusteeship.
Trusteeship, the writers cautioned, “would have negative consequences for the workers directly affected, the SEIU itself, and for the labor movement as a whole. We strongly urge you to avoid such a tragedy.”
A tragedy, indeed, it has been. On January 29, 2009, SEIU, ignoring advice from all directions, refusing compromise on any issue, placed UHW, a militant, progressive, worker-led union in trusteeship – seized its offices, fired its elected officers – top to bottom – and set about dismantling the human infrastructure of the union, itself the product of years of struggle. Today, UHW remains, though as a shell of its former self – a UHW wrecked, not by the employers, nor the state, no, wrecked by the SEIU international.
SEIU, now under new management, has used this California adventure to solidify its top down structures and refine its business friendly, corporate style reincarnation of the worst forms of US business unionism, not good news in the midst of a “recovery” that promises “austerity”, slashing public sector jobs, increasing cuts in an already enfeebled social safety net. The results in the state of California, as elsewhere, reveal among other things the absence of organized opposition, above all working class opposition. It’s back to normal for the rich, live on less, unemployment, wage cuts, foreclosures for the rest. New (!) Governor Jerry Brown has introduced the liberal Democrats version of “austerity” – which includes a dramatic reduction in the number of state workers. This has been welcomed by SEIU’s newcomers, who supported Brown – not quite, perhaps, as lavishly as the international supported Obama, but generously, all the same. Carpetbagger David Kieffer, now appointed executive director of SEIU in California told the San Francisco Chronicle, “We support the governor’s approach.” (January 11, 2011)
These sad results did not come about without a fight, however - two years ago this month UHW members, responding to the seizure of their union, demanded the right to a union of their choice. They led the biggest decertification drive in history – a majority of UHW members petitioned for representation by a new union, the National Union of Healthcare Workers (NUHW), led by the healthcare workers who had built UHW. There has followed what we have called a “civil war” in California labor – an intense, non-stop conflict, referred to by Democracy Now’s Juan Gonzalez as a “battle for labor’s soul.”
The results have been at best mixed. NUHW has won victories at the University of Southern California Hospital, as well as with Kaiser Permanente’s Southern California professional workers and the nurses at the huge LA Sunset facility. In November, 1500 northern California Kaiser mental health professionals and optical workers voted to leave SEIU and join NUHW. In December, workers at Santa Rosa’s Memorial Hospital finally turned a six-year’s long, hard-fought representational campaign and election victory into a fight for a good contract – negotiations now underway. In January, 67 unorganized workers voted to join 860 NUHW members at Salinas Valley Memorial Hospital workers who left SEIU in May 2010. These victories have been overshadowed, however, by the narrow defeat of home care workers in Fresno and the September, 2010 defeat at Kaiser.
Still, NUHW, against all odds, has survived; it has grown to 8000 members, no small achievement for a new union in this era of continuing sharp trade union decline – all the more impressive in the face of SEIU’s scorched earth, take-no prisoners invasion and occupation of California’s healthcare unions. NUHW is currently in negotiations with employers in twenty California facilities – it routinely receives requests for representation in healthcare facilities from workers throughout California in an industry that remains overwhelmingly non-union.
SEIU, however, has managed to hold onto most of UHW. How? We have examined, in these pages, how SEIU has used its huge resources, its wealth, its small army of full-time staff, threats, lies and reprisals as well as its teams of well-healed lawyers to maintain this control in local affiliates that still represent perhaps a third of all SEIU members; this in turn guarantees SEIU the millions of dollars in dues income these organizations and their members generate. The cost – for SEIU - of the Kaiser election (SEIU refuses requests to itemize its expenditures) ranks as one of the highest (per voter) in US history – Randy Shaw, writing in BeyondChron (September 7, 2010), estimated that the total was between $20 to $40 million.
Much of this has been spent in court rooms, in the 2008 pseudo-legal trusteeship proceedings, in the 2010 civil suit against former UHW leaders, and in the SEIU’s ongoing successful manipulation of the National Labor Relations Board (NLRB), the institution that administers US labor law. This last connection – that is, the collusion of SEIU and the NLRB – has been an essential component in the “success” of the SEIU onslaught and it is a development that needs to be confronted by everyone who is concerned with the rights of working people in the ever-increasing corporatization of society.
According to Latika Malkani, an Oakland attorney who frequently represents NUHW, when employees seek decertification, typically papers must be filed within 42 days and the NLRB’s stated goal is to bring the issue to an election within six weeks. Bureaucratic, let’s say, but fair enough. SEIU, however, has successfully “blocked”, that is, delayed these elections in some case for as much as two years, as in the case of the recent election at Sutter’s Alta Bates Hospital in Oakland. In other hospitals, for example, Oakland Children’s and Sutter’s California Pacific Medical Center in San Francisco, workers who petitioned in February 2009 still wait. Kaiser workers elections were delayed for eighteen months. Malkani says there is only one way to describe this situation: “Justice delayed is justice denied.”
How is this done? Steve Early, in his new book, The Civil Wars in US Labor, explains that the NLRB, even in the best of circumstances, inevitably involves delay and frustration. The emergence of NUHW and “this huge wave of organizing activity swamped the NLRB in California. The Board is incapable of expediting union representation votes even when the objecting party is just an employer.”
SEIU lawyers took advantage. Immediately – following the filing of petitions – they responded with “unfair labor practices” charges. These must be investigated before an election is scheduled. Moreover, SEIU filed not just one set of charges, but continuously adds to these, and this leads to the necessity of more investigation, more delay. At the same time, SEIU charged two dozen NUHW leaders and staff with an array of alleged offences, forcing them into an extended and expensive legal battle in Federal Court in San Francisco. SEIU’s attorneys originally asked for $25 million in damages, though later they revised this down to $1.5 million. In the end, the jury found no conspiracy, no theft, no violence, no sabotage and no “contracts left open.” They did, however, find the remaining defendants plus NUHW liable for the $1.5 million, allegedly for betrayal of fiduciary duties - the jury ordered that defendants pay back part of salaries and costs for January 2009. In this they apparently agreed that the former UHW officers and staff obstructed the transfer from UHW of 65,000 long-term care members to the scandal ridden southern California local 6434 – without consent. And they seemed to agree that these defendants spend some time in January – before trusteeship – preparing to launch the new union, NUHW, not the crime of the century. Hardly much reward for the more than $10 million spent by SEIU. SEIU, to this day, harasses these individual workers, all good union men and women, all with histories of long-term commitments to workers and their unions. These people face a campaign to collect for alleged damages, carried on as viciously as that of any slumlord or banker.
But there was more to it than that. SEIU’s lawyers worked in tandem to see that legal strategies overlapped. The charges in the civil trial were submitted as “unfair labor practices” in the NLRB hearings, allowing SEIUs lawyers, says Malkani, to continuously “feed” the Board “new information.” In all this, “the NLRB was completely complacent.” The value of delay for SEIU is self-evident. But just as important is the use to which this time was put. NUHW organizers were, by law, denied access to the workers while the investigations were in process, and in nearly every case the employers were quite happy to collaborate. SEIU had sole access to bargaining materials; again the employers were more than compliant. On and on it has gone. And then appeals, cases sent back to Washington, DC, where, interestingly, Craig Becker, a former Assistant General Counsel for SEIU has been appointed by Obama to run the national agency. SEIU is said to have contributed $80 million to the Obama campaign. DC, says Malkani, has not been friendly.
In all this SEIU’s lawyers successfully controlled the timing of the entire process – and hence effectively were able to decide when and where elections would be held. When conditions appeared favorable, SEIU would withdraw charges – the board would set the elections within the six weeks framework. When unfavorable, the delays continued, as they do in hospitals and other healthcare facilities to this day.
In the case of Kaiser, with eager employers, SEIU renegotiated the contract just before the election. SEIU then extolled imaginary improvements and threatened that all would be lost if NUHW prevailed. In turn, Kaiser illegally withheld negotiated pay raises from NUHW members in southern California; SEIU of course took advantage. Belatedly the NLRB found against Kaiser but not before SEIU used this to see that the damage was done. “Justice delayed” also allowed SEIU to cement relations with the employers, if indeed this was necessary. It has been revealed that SEIU international representatives approached California employers well before trusteeship, advising them not to recognize UHW elected leaders.
NUHW is now appealing the Kaiser election, charging that SEIU unlawfully threatened Kaiser employees with loss of benefits and wages; Kaiser paid SEIU representatives to campaign for SEIU; Kaiser provided special access to SEIU staff, while denying it to NUHW, and SEIU engaged in acts of physical force and violence against NUHW supporters. Nevertheless, while the NLRB investigates, the violations continue. In the recent election at Alta Bates, management and security provided SEIU with a room, a center for organizing activity and the distribution of free pizza. NUHW staff, on the other hand, were excluded if possible, otherwise harassed. Sutter assigned individual, permanent security to NUHW leaders Sal Rosselli and Ralph Cornejo. Hospital administrators circulated letters affirming SEIU’s false claim that workers would forfeit their contract gains by voting to join NUHW. And management fired 31-year employee, Beverly Griffith, a NUHW member.
This has been possible because essentially SEIU has unlimited funds – millions of dollars thanks to hard working healthcare workers, including those in California. It has also been possible thanks to the lawyers, ever willing and able; in this case Mr. Bruce A. Harlan of Weinberg, Roger and Rosenfeld, Alameda; Glenn Rothner of Rothner, Segall and Greenstone, Pasadena; Michael J. Hunter of Hunter, Carnahan, Shoub and Byard, Columbus, Ohio; all good, no doubt, labor lawyers. The list also includes Edgar James, partner in one of Washington DC’s “super” firms, James and Hoffman, as well as partner Judy Scott, formerly of SEIU, now an “outside general counsel.” In the San Francisco civil case, there were at one point so many lawyers in the SEIU’s benches that there was no room for members, let alone the public and the press. Is the money worth is? “I wouldn’t do it,” says Malkani.
Malkani works in the East Bay firm Siegel and LeWitter. This firm plus Siegel and Yee, has represented the workers. The two firms, led by brothers, Jonathan and Daniel Siegel, are well-known in progressive circles. Jonathan Siegel’s firm has done the NLRB work; it specializes in defending the rights of rank and file workers. Dan Siegel’s firm is and has been involved in such cases as the suit of 2008 Nigerian villagers against Chevron, the defense of UC Berkeley students, Oakland gang members, Oscar grant protesters and KPFA programmers. The Siegel firms, according to partner, Jose Luis Fuentes, work, in this case, essentially pro-bono – or, as Jonathan Siegel puts it, “it is sweat equity.” This month, they filed papers appealing both the Kaiser election and the civil case judgment.
There is an old argument in the workers’ movement that the legal system, the “bourgeois” courts in general, the NLRB in particular, is to be avoided. It’s not the workers’ terrain; justice there is class justice. It is a system about wealth and property. Certainly there is truth here – in the civil case, the Judge, William Alsup, Mississippi born, Harvard educated, well regarded in San Francisco’s liberal circles, likened SEIU and its locals to the Bank of America and its branches. It was beyond his imagination to consider that the now fired, and then elected leaders of UHW had any obligation to the workers who elected them and paid their salaries. The international officers, the Judge repeated, singing the same song as the SEIU lawyers, were in charge – power was located and belonged at the top, and, after all, they were the “deciders.” The officers of UHW were obliged to follow their orders.
This is our system. It is our system of labor law. Why is this? How are we to understand the law used so blatantly by the powerful against the weak? Law that in this case in widely understood to be protective legislation – establishing, not undermining the rights of labor. Surely it is necessary here to undertake a closer reading of the origins of the NLRB and the intentions of those who drafted the Act that established it. The NLRB’s roots are in New Deal legislation, the National Labor Relations or “Wagner” Act that in effect made unions legal, for some workers, for the first time. The unions, for the most part, celebrated this and, despite substantial, pro-business revisions first in 1947 with Taft Harley (the “slave labor bill”) and then in 1959 with Landrum Griffin, the unions recognize – and respect – the law, even as amended. The demand that Taft-Hartley be repealed has been shelved. EFCA (the 2008 Employee Free Choice Act) possibly would have inhibited employer interference in elections; it might have emboldened organizers. It too was shelved, however, sacrificed we are told for Obamacare. There remains today support for labor law reform – but only in the mildest sense. The complaint, in the context of supporting the law, is chiefly that it needs some rebalancing, hence EFCA. This makes sense, the labor movement is for the most part business oriented and bureaucratic; no union is without its lawyers and legal consultants. It is therefore quite as at home in the bureaus of the Labor Board as are the employers. The SEIU’s use of NLRB was and continues to be identical to that the employers.
This case, however, the case of the SEIU versus its members, while by no means unique, raises all this to a new level and demands attention. In this case, the issue is not simply do workers have the right to join a union; it is do workers have a right to join a union of their choice? The answer, certainly for SEIU, and apparently, listening to the silence of organized labor, seems to be “no”. Rather workers appear to be more like the property of unions. In the case of the California healthcare workers, thousands have essentially been held hostage; they have no free choice of union; they can be contained in archaic jurisdictional restrictions, by back-room wheeling and dealing and the accidents of history. (I know this will be seen as anti-union. But how can one not think here of the demand of Egyptian workers for unions of their own? Or for the older generation the Polish Solidarity? Or of the founding of the CIO? The IWW?)
Still, workers have no choice but to participate, and NUHW has little choice but to appeal to the NLRB, no matter how slim the odds. They have a moral obligation to do whatever they can to rescue these captive healthcare workers. But it must be remembered that they belong to a different tradition – the origins of NUHW are in the thirties when in the aftermath of the General Strike San Francisco workers organized the nations’ first hospital union. The history of California healthcare workers is one of struggle – it is in part this history, it seems to me, that alerted the former UHW members and leaders to SEIU’s corporate strategies and inspired them to resist.
The New Deal reforms, the NLRA included, were designed to regulate, rationalize and revive capitalism. Their intent was not to encourage conflict but to diminish it, including, or especially, in industry; it was to guide the long-run development of the labor movement into domesticated channels. We have not seen the intervention of rank-and-file workers in this country since the 1970’s; perhaps that is some excuse for the legal and corporate fantasies of SEIU. Still, they misread our history. “The Act /the NLRA/ became law” wrote Karl Klare, then a Professor of Law at Northeastern University, in a 1979 article, “only when the employers were forced to obey its command by the imaginative, courageous and concerted efforts of countless unheralded workers… /It was/ one of the rare instances in which the common people, often headless of the advice of their own leaders, seized control of their destinies and genuinely altered the course of American history.”
This ongoing conflict in California has its immediate origins in two related disputes – disputes worth remembering today. The first was the refusal of the UHW members and leaders to continue participation in the SEIU’s “Alliance” - a strategy that based organizing on partnerships with employers and “neutrality” agreements. These agreements typically allowed employers to pick and choose which facilities would be organized, they restrict workers’ rights, they enshrined long- term agreements (e.g. ten years in a Washington state contract), etc., all in return for employer “neutrality” in an election. No wonder workers frequently complained, “The boss brought me this union.”
The response to California’s refusal was first retaliation, then trusteeship. In retaliation, the international leaders announced their intention to remove 65,000 healthcare workers from UHW, transferring them, whether they liked it or not, to a scandal-ridden southern California local. Of course SEIU justified the transfer as in the best interests of the workers, whether they knew it or not.
We can now assess these conflicts. The “alliance” strategy, never fully implemented in California, has been put to the test in Ohio – interestingly the base of Ivy League Dave Regan, soon to be President of UHW, now appointed Trustee.
On January 31, workers in 39 of 44 units at hospitals and nursing homes in Ohio rejected representation by SEIU. These included some 7000 nurses, professional and nonprofessional staff, skilled maintenance workers, technical workers including licensed practical nurses, and employees of business offices at seven hospitals and eight nursing homes owned by Catholic Health Partners (CHP). The elections at the facilities were the culmination of an organizing campaign that had begun several years ago but were interrupted by alleged interference by the California Nurses Association (CNA). The CNA charged at the time that the hospital system and SEIU had reached an illegal “back room” deal that compromised workers' rights.
The latest election was held under an agreement between SEIU and CHP not to campaign or otherwise seek to influence workers' decisions on whether to be represented. According to NLRB, the only materials workers received were jointly created by the union and the employer to explain the voting process.
“It's not surprising that SEIU so overwhelmingly lost these elections,” said John Borsos, vice president of NUHW. “The fact that the election was triggered through a manipulation of the NLRB where the employer files for an election and the union never even establishes the required 30 percent showing of interest to petition the election ensured that no real union was ever organized.”
A final note: when Ray Marshall, a then 80 year old former Secretary of labor, the chief officer in the Trusteeship hearings in 2008-2009, announced his findings, they included recommending against trusteeship. However, incomprehensibly, he then advised that should UHW refuse the transfer of the 65,000, trusteeship would be justified. UHW agreed to the transfer, but only following the vote of the members. Trusteeship was imposed. Today, the 65,000 long-term care workers remain in UHW – apparently they were not the issue after all.
The civil war in California then continues; indeed it remains the single most important dispute in these times. The soul of labor remains at stake – militant, progressive, worker-led unionism v. corporate unionism, really, hardly any unionism at all. All the more important to support NUHW; all the more important to oppose the SEIU regime, inside and out.
Legal defense costs are now in the hundreds for thousands of dollars. SEIU’s clear intention continues to be to humiliate and break these people – all good union men and women.
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Cal Winslow has written extensively on the subject of the SEIU and NUHW. He is the author of Labor’s Civil War in California, PM Press and an editor of Rebel Rank and File: Labor Militancy and Revolt From Below during the Long Seventies (Verso, 2010). He is a Fellow at UC Berkeley and Director of the Mendocino Institute. He can be reached at firstname.lastname@example.org