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The Big Do-Over at Kaiser

Which way will 45,000 California healthcare workers swing? The answer has major implications for labor.

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The NUHW and SEIU have been in a pitched battle over California healthcare workers since 2009; here, in April of that year, NUHW protesters carry signs decrying SEIU's tactics., Spot Us/Flickr/Creative Commons

For seventy years, there was no bigger union representation vote in the private sector than the 2010 election involving 45,000 workers at Kaiser Permanente (KP), the giant health care chain in California. Now, the same labor and management parties are engaged in a costly re-match with wider implications for labor.

The initial election pitted the Service Employees International Union (SEIU) against its new California rival, the National Union of Healthcare Workers (NUHW). SEIU, the incumbent union, retained its bargaining rights by the healthy margin of 18,290 to 11,364. But, according to the National Labor Relations Board (NLRB), that victory was tainted by SEIU misbehavior similar to that of anti-union employers--the kind of tactics usually termed "union-busting." Over SEIU's objections, the NLRB ordered a re-run of unprecedented scale.

That's why the same group of Kaiser service and technical employees is receiving mail ballots this week giving them a second chance to replace SEIU with NUHW, keep their current union, or revert to non-union status (an option chosen by only few hundred workers in 2010). Due to an infusion of new resources on the NUHW side, the big do-over at Kaiser appears to be a closer contest than last time.

If SEIU is ousted when ballots are counted in early May, this once fast-growing union will suffer a greater membership loss in a single election than it did all last year when it shrunk by 43,000 members. Kaiser, in turn, will lose the linchpin of its 16-year-old "labor-management partnership," long heralded as a model for "union friendly" employers everywhere.

Implications For Labor

NUHW was formed four years ago after SEIU removed 100 elected officers and executive board members of United Healthcare Workers (UHW), its third largest affiliate, and put the local under trusteeship. SEIU's rationale was that UHW had refused to allow 40 percent of its members to be transferred to a new SEIU local for long-term care workers (UHW objected that the affected workers had not approved the move). As many critics argued at the time, SEIU President Andy Stern's real goal was to crush a burgeoning internal reform movement that was anchored by the 147,000-member UHW and increasingly critical of his leadership.

After UHW President Sal Rosselli and other SEIU dissidents were purged, the now retired Stern installed his own appointees to run UHW, including Dave Regan, a member of the SEIU national executive board from Ohio. Under Regan, the UHW was never required to transfer any dues payers elsewhere. Instead, more than 9,000 UHW members in nearly 20 hospitals and nursing homes defected to NUHW, which is now affiliated with and heavily financed by the California Nurses Association. In a series of smaller decertification elections, UHW has suffered a net loss of 3,000 members during Regan's controversial four-year tenure as trustee and now president.

Individual personalities aside, California's latest round of healthcare worker conflict puts key questions facing labor in sharp relief: Can unions best protect past contract gains by cooperating with management or by using strikes and workplace militancy to resist demands for givebacks? Should unions partner with employers on legislative and regulatory issues affecting their industry, or develop an independent agenda reflecting worker and consumer interests? Within the framework of "labor-management cooperation," what becomes of the union's role enforcing the contract and representing workers in their day-to-day job problems?

Red vs. purple in Vacaville

To see how these questions were playing out at Kaiser, I visited its shiny new "campus" in Vacaville, south of Sacramento, last week. In a scene replicated at 30 other Kaiser medical centers around the state, the competing unions both had information tables set up in the hospital cafeteria. On the day I visited, NUHW-CNA officers Sal Rosselli and John Borsos  were making a lunchtime stop in Vacaville to meet and greet a steady stream of SEIU-represented service and technical unit workers, along with CNA nurses.

Most NUHW-CNA supporters sported their signature red T-shirts. A smaller, less buoyant crowd of purple-clad SEIU activists staffed the opposite table, which was filled with literature attacking the two visitors. In flyers that appeared to be recycled from the 2010 election, SEIU-UHW proclaimed that Rosselli, Borsos and other former UHW leaders had been "caught misusing millions of members dues dollars." On the back of one, SEIU-UHW listed the $1.5 million in monetary damages sought from NUHW and 16 of its organizers in a counter-lawsuit filed by SEIU (which was unfortunately upheld last month in federal court).

Other SEIU-UHW campaign material took aim at recent picketing of Kaiser and Alta Bates Summit Medical Center in Berkeley, where, "NUHW-CNA has gone on strike 12 TIMES and they still have no contracts and are losing benefits."  The flyer also quotes CNA Executive Director RoseAnn DeMoro as saying at the Left Forum last year, "We're always out on strike." Another SEIU-UHW mass mailer asks Kaiser workers, "Would you rather spend your time fighting or winning?" It assures NLRB election voters that SEIU-UHW takes "a balanced approach, working in partnership with Kaiser management when possible and taking them on strongly when necessary." As a result, "We have bargained the best contract in the hospital industry without losing a day of pay on strike."

In the NUHW-CNA corner of the cafeteria, a longtime medical records keeper named Jerry Corpus had a different view of that bargaining history. Corpus, who retired last month, comes from a big, extended Kaiser family: His wife is an unhappy SEIU member, his sister a CNA-represented nurse, his mother, brother, son, nephews and nieces are or have been on the Kaiser payroll. For more than a decade, during his own 23-year hospital career, Corpus was active in the pre-trusteeship UHW (then SEIU Local 250). Why did he curtail a long-planned, post-retirement fishing trip to campaign for NUHW-CNA? "If we stay with SEIU, it will affect my whole family," he explained.

According to Corpus, it was the pre-trusteeship UHW leaders, including Rosselli and Kaiser division director Ralph Cornejo, who helped members fight, for two decades, to achieve "the best contract in the hospital industry." Now, he believes, that agreement has been weakened by "many takeaways" and lack of union enforcement, particularly in the area of job security. Since the trusteeship, SEIU-UHW has agreed to pension and medical plan changes reducing Kaiser's benefit costs by $2.1 billion, during a period when it was racking up record profits of more than $8 billion. Kaiser's elimination of 1,000 jobs has gone largely uncontested by SEIU-UHW; job security is also being undermined through sub-contracting and use of "per diem" employees who should be converted to regular status.

"If you're a strong union, you're for the employee, not the employer," Corpus said. "But it doesn't seem like that's happening any more. The managers now are just walking all over people. When we were Local 250, management respected the union and the union kept us informed. We had steward councils and our local leaders never made a move unless employees first had a voice in the decision."

Corpus hardly fits the stereotype of a strike-happy union militant. His last role at Kaiser was in Human Resources; for many years he was the lead labor-management partnership (LMP) coordinator and trainer at Kaiser facilities in several counties north of San Francisco. Kaiser bills its labor-management partnership as an innovative program for non-adversarial labor relations, in which "front-line physicians, managers, and union members work together in unit-based teams to solve problems collaboratively." In his role as LMP coordinator, Corpus favored "interest-based problem solving" and helped create more than 125 unit-based teams.

Now, Corpus observes, if Kaiser workers have a job problem, they're constantly reminded by supervisors and their union that "we're in a partnership." In his view, "Management and labor now use it as a weapon against us." In 2012, he notes, UHW couldn't even get Kaiser to continue funding the LMP--instead, each of SEIU's 45,000 members now pays 9 cents an hour to support the program. (This $6 million annual deduction from wages comes on top of SEIU dues that are 25 percent higher than NUHW's.)

In a costly pre-election media blitz, NUHW-CNA is showcasing its anti-partnership stance in ads informing the public that the two unions are "working together to make sure that Kaiser and other big hospitals don't put their wealth ahead of your health." These 30-second TV and radio spots feature, respectively, Kaiser nurses Catherine Kennedy and Monica Russo, who discuss a recent NUHW-initiated state crackdown on Kaiser for its managed-care deficiencies.  "NUHW-CNA members just forced Kaiser to use its record profits to hire more mental-health clinicians to reduce long delays in care," the ads report.

'High-road labor relations'

This whistle-blowing approach is anathema to new UHW President Dave Regan and his allies in the hospital industry. Under Regan, SEIU-UHW has developed close ties with the California Hospital Association (CHA), which lobbies for Kaiser and other major healthcare chains. In an interview with the Sacramento Business Journal last year, CHA president Duane Dauner publicly praised Regan's business-friendly approach, while condemning the more adversarial stance of NUHW and CNA. "They look at management and employers as the enemy," Dauner said. "They draw a line in the sand. Anything management does, they are against. It's just 'give us more and more.'" In contrast, he noted, SEIU leaders "are working with us, and we are trying to work with them, on healthcare policy and high-road labor relations."

Among other CHA causes, Regan has championed the association's opposition to a "charity care" bill before the state legislature that would require non-profit hospitals in California to provide a minimum level of care to low-income patients without insurance. In fighting the bill, Regan is going against not only the CNA, which has long pushed it, but also the California AFL-CIO, the Teamsters, Machinists, UFCW and other major unions who back the measure. Regan similarly outraged CNA and other labor organizations last year when he tried to get the state AFL-CIO to go along with an industry-backed effort to weaken California's unique law requiring low nurse-patient ratios.

Lack of representation?

While such public policy differences are important to some workers, NUHW supporter Higinia Alvis is more concerned about individual representation. Alvis is a patient care technician at Kaiser Vacaville who was fired by Sutter Health three years ago at its Alta Bates Summit facility in Berkeley, after eight years of service. UHW filed a grievance on her behalf, arguing that she was wrongly dismissed in a dispute over taking her lunch break in an under-staffed area of a hospital at which management pressured workers to skip their breaks. After several labor-management meetings about her grievance, Alvis says, she heard nothing about the status of her case for more than a year. She says that she left repeated voice mail messages with her UHW rep seeking an update, only to be informed via voicemail just last month that her grievance was not being taken to arbitration. A promised letter explaining the basis for this decision has yet to arrive, Alvis says. So Alvis is now trying to persuade the National Labor Relations Board that SEIU-UHW breached its legal duty of fair representation.

According to NUHW, 430 other unfair labor practice charges alleging "failure to represent" have been filed by other SEIU-UHW members in the last four years. More than half came from frustrated workers at Kaiser where, NUHW claims, there are now more than 1,000 outstanding grievances, including 239 unresolved termination cases. On a conference call in February with Dave Regan, even SEIU-UHW stewards were complaining about Kaiser's high rate of unfair dismissals. "They are terminating more than they ever have," one steward reported. "They are really trying to get rid of people." According to another, "Kaiser is out to weed out anyone that they don't appreciate." On this invitation-only call (which was secretly recorded by a participant), Regan defended UHW's grievance filing record. He reminded the troubled stewards that, "representation is also about what's in your pay check. Every one of our 45,000 members gets paid every couple of weeks by Kaiser and that's representation too."

While Alvis was still awaiting her grievance withdrawal letter from UHW, she did get a memo from management--one assuring Kaiser workers that, "Kaiser Permanente is and will remain completely neutral in the election process." If there's one thing that UHW and NUHW-CNA activists likely agree on, it's that management actually favors the status quo--and very much so. Through the SEIU-dominated Coalition of Kaiser Permanente Unions, Kaiser currently bargains with 28 unions, representing 90,000 employees, in nine states. Yet the hospital chain seems deeply committed to preventing NUHW from gaining any bargaining foothold outside the "partnership" framework that CNA has rejected for even longer.

Kaiser's horse in the race

As one NUHW-CNA organizer told me, SEIU's "most successful argument among workers is, 'You won't have a contract if you leave. You'll lose everything.'" Dave Regan himself repeated this claim on KPFA radio in Berkeley just last Friday. Legally speaking, however, it isn't true. Existing contract terms for Kaiser service and technical workers would remain in effect while NUHW negotiated a successor agreement. That's been the process in the five smaller bargaining units that switched from SEIU to NUHW in 2010.

Those 4,000 NUHW-represented workers have not had an easy time at the bargaining table, however. The first group to switch was illegally punished by Kaiser, which withheld scheduled raises until the NLRB sought a rare federal court injunction in November of 2010 against this unfair labor practice and secured several several million dollars in back pay.

Kaiser negotiators have dragged out bargaining ever since. Management's stonewalling has created an opening for SEIU to stir up decertification activity among a minority of workers in two NUHW units. In 2005-2006, similar tactics by Kaiser in first contract negotiations with another non-LMP union, the Communications Workers of America, led to CWA's decertification by a narrow margin in a newly organized unit of California call center workers. In those frustrating talks, Kaiser wouldn't agree to the same contract conditions enjoyed by SEIU members in other nearby centers.

Recently, Kaiser Permanente management made what SEIU claims is a "final offer" to approximately 300 optical workers who switched to NUHW. Kaiser's proposed contract with NUHW would shift medical costs to workers, plus change their pension and retiree health coverage. In response, three-quarters of the optical workers signed a petition publicly rejecting these concessions and expressing support for elected NUHW negotiators still seeking a better deal. "SEIU-UHW isn't interested in helping us," says Sonia Askew, an optician in South Sacramento covered by the contract. "They're just trying to use us as a publicity stunt in the election."

CNA's added punch

Askew and others involved in protracted NUHW negotiations with Kaiser believe the balance of power will shift dramatically if NUHW wins the election and adds 45,000 service and technical workers to CNA's 18,000 Kaiser nurses and the 4,000 Kaiser Permanente employees already part of NUHW. This new alliance would create the largest bargaining coalition within the hospital chain. CNA's contribution to the equation has already made NUHW members feel stronger. During the last election, when CNA was officially neutral, 27-year Kaiser veteran Teresa Cosper recalls being "pretty much out there by myself" in Vacaville. Now, she says, "The nurses have added so much punch. To have them with us makes a tremendous difference." The huge infusion of CNA resources has enabled NUHW to field more than 125 organizers and afford mass mailings and ads, plus a door-to-door canvassing operation hired from outside.

SEIU-UHW is flooding Kaiser facilities with its own army of full-time staff in advance of the election. But fewer SEIU locals, in other parts of the country, seem to be contributing to that effort than in 2010. Win or lose, SEIU will still be suffering from a post-UHW trusteeship growth trajectory that's a far cry from the boom years of 2006-2008, when it was adding 100,000 workers to its ranks every year. That number was halved by 2009; in 2011, SEIU registered net membership growth of only 5,000 in the entire country; and now, according to the union's latest U.S. Department of Labor filing, active membership in SEIU dropped from 1,885,728 to 1,842,490 in 2012. (Another 237,000 workers pay agency fees to the union but don't belong to it.) Since 2009, in California alone, almost 20,000 healthcare workers and public employees have left SEIU for NUHW or smaller independent unions.

This reversal of fortune is not unrelated to the tens of millions of dollars that were diverted in 2009 to internal repression of SEIU dissidents and afterward, to a continuing series of representational conflicts fueled by deep membership discontent with SEIU's organizational behavior in California heath care.

Whether that discontent reflects a militant minority or a new majority at Kaiser won't be known until the vote count begins on May 1, a day long associated with red, not purple, in the ranks of labor.


Steve Early worked for 27 years as an organizer and international representative for the Communications Workers of America. He is the author of The Civil Wars in U.S. Labor, from Haymarket Books, which chronicles past California healthcare union conflicts. He has a forthcoming book from Monthly Review Press titled, Save Our Unions: Dispatches from a Movement in Distress.