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The Labor Trial Of The Decade:
The NUHW Case for Overturning the Kaiser Election

by Paul Rockwell
Oakland, California

There is a connection between Wisconsin and what is taking place in a quiet courtroom under Judge Lana Parke at the National Labor Relations Board in downtown Oakland, California.

The National Union of Healthcare Workers (NUHW) is seeking to overturn the Kaiser decertification election that ended in SEIU victory, October 7th, 2010. The disputed election involved 43,000 Service and Technical employees throughout the state of California, and it was the largest private sector election held by the NLRB in seventy years. I see no reporters at the hearing, which may go on for two more weeks. While all eyes are on Wisconsin, this overlooked contest may become the most important labor trial of the decade. The right to collective bargaining intertwines with the right of all employees to choose between unions, in elections free of employer blackmail. The right to threat-free elections is at stake.

In their opening remarks and briefs, Jonathan Siegel and Latika Malkani, attorneys for NUHW, outlined a host of allegations: that Kaiser provided SEIU with material and financial support; that SEIU unlawfully sought and accepted Kaiser’s financial aid; that SEIU unlawfully engaged in espionage and various acts of physical force and violence against NUHW supporters; that Kaiser provided privileged access to SEIU staff, and that Kaiser denied NUHW access to non-work areas; that SEIU unlawfully threatened Kaiser employees with loss of wages and benefits if NUHW won the election. 

The core objection concerns Kaiser's unfair labor practices, in particular, Kaiser's unlawful takeaways in Southern California. 

In January 2010, months prior to the commencement of the Service and Tech unit election, prior to Kaiser’s takeaways, NUHW won landslide victories in three Kaiser units in Southern California. NUHW received about 95% of the vote in the AFN unit, 84-85% in the PSC unit, and about 86% of the votes in the HCP unit. The victory was a direct result of a pro-active upbeat campaign based on NUHW’s record of great contracts. In response to the NUHW victory, Kaiser deprived NUHW-represented employees of their 2% across-the-board wage increase (scheduled for April 2010). Kaiser also withdrew tuition reimbursements, education payments, and halted paid time off for steward training. According to NLRB rulings, by denying these benefits, Kaiser subverted workers’ basic right to change unions.

Employees, fresh from an historic victory, a victory that should have boosted NUHW influence in the upcoming election, were stunned. Hopes were dashed. Shock waves passed through the Tech and Service units in California, where the new elections were in preparation. Kaiser’s precipitous actions undermined NUHW’s stature, debilitated its ability to organize and campaign in the summer and fall of 2010. 

In essence, the present hearing seeks to determine whether Kaiser’s illegal activities, systematically amplified by SEIU, unlawfully impacted the outcome of the election. Let us turn, briefly, to some of the testimony in the first week of the trial.

Ralph Cornejo, formerly the United Healthcare Workers (UHW) Kaiser Division Director, took the stand as an expert witness. Cornejo played a major role in the national and cross regional bargaining in 2005 and 2008. He was directly involved in crafting and negotiating the best healthcare contracts in the industry.

Shortly after Kaiser illegally imposed its infamous takeaways in three Southern California units, Cornejo traveled to facilities throughout the state, where he observed the impact of Kaiser’s unfair labor practice on the election itself. As might be expected in a time of economic anxiety, union members were fixated on the precedent in Southern California, especially on potential for more suffering in the rest of the state. Here is some of the testimony:

Siegel: To what extent in your campaign activities throughout the state did you have inquiries from members about whether or not it was likely that the 3% raise [scheduled for October 2010] would be paid if NUHW won?

Cornejo: It was an absolute fear that they would not get paid the 3% if NUHW won.

Siegel: Okay. And could you characterize just in comparison to, you know, other inquiries you received from bargaining unit members, how important this issue was compared to others?

Cornejo: It was overwhelming. it was overriding. It was the main issue for members. Members consistently referred to the fact that the Southern California folks did not get the 2% -- have not gotten the 2%. Why wouldn’t Kaiser withhold the 3% for us?

Siegel: Could you characterize the frequency with which the bargaining unit members would make that comment to you while you campaigned?

Cornejo: At every single facility I went to, that subject would come up multiple times. 

There was a feeling of foreboding and panic in some facilities. Cornejo himself went through a few harrowing experiences, mob-like confrontations.

Siegel: Did you have any incidents there were you were subject to intimidation in your estimation?

Cornejo: Yes. I was driving Dolores Huerta to the medical center where we were going to meet with members just to support NUHW. When we got there, there were about 100 SEIU supporters in front of the hospital waiting for us... As we approached the hospital, they surrounded us and were pushing us and shoving us. ...Understand Dolores Huerta is a 80-year-old woman, very frail, and we just were surrounded by this throng of people. They were yelling -- one of them was yelling at her saying she should go back to the fields...

Siegel: Did people actually physically touch you or Ms. Huerta?

Cornejo: Yes, absolutely. ...They touched me for sure. I was trying to protect Dolores. It was crazy, it was a crazy atmosphere. The SEIU folks were chanting, they were going in the hospital chanting, walking out of the hospital chanting. It was pandemonium. The police were called.

Siegel: Were you and Ms. Huerta addressed with obscenity?

Cornejo: Oh, absolutely.

Siegel: And did Kaiser management take any steps to stop what was going on?

Cornejo: Not that I could see and I know that two labor relations folks were there, Bill Blank and Maryanne Malzone. Just standing there. 

Siegel: And when was this event?

Cornejo: June 25th. 

Siegel: How long did this incident go on for?

Cornejo: A couple of hours.

Another incident took place in the San Jose Medical Center.

Cornejo: It was around 1:00 in the afternoon. All of the stewards came out of the Steward Council meeting and surrounded my table and this happened many times to me throughout the medical centers, where people would start asking me questions and before I could answer the question, another—they would ask another question. It wasn’t like they were really wanting answers....Just very antagonistic questions.

Siegel: Did it interfere with your ability to speak to potential supporters?

Cornejo: Our members were unable to talk to me. I was completely surrounded. One of the stewards was pointing her finger at me and saying if we vote for NUHW, we’ll lose our health insurance and before I could try to explain, another person would ask a question. So it was impossible to have a conversation.

Judge Parke: At the San Jose Medical Center, how long did this particular incident last?

Cornejo: About an hour.

Roy Chaffee

Roy Chaffee who works at the Kaiser Permanente Call Center in Vallejo, also testified under oath about the impact of Kaiser's unlawful cuts and SEIU threats. He talked about the constant robo calls that threatened takeaways. "I recall one call in particular from a nurse in Southern California, who admonished us not to vote for NUHW, because we would lose our scheduled pay increases, tuition reimbursement and PSP bonuses. Specifically, I recall her saying don't make the mistake we did." He went on: "Mainly, the folks I spoke with were more concerned about these -- the Southern California professionals and how they had lost when they voted for NUHW, lost raises, lost PSP, lost tuition reimbursement. The folks at the call center are very -- were very concerned about that."

"How many individuals do you think you had these types of conversations with about the election?"

"A hundred." He described one conversation: "Nancy was very concerned about losing her scheduled pay increase."

"Is that what she said?" asked Judge Parke.

"Yes....The conversation was about the fact that she’s a mother and she doesn’t have a lot of money, and she can’t afford to lose her raises, and that didn’t I agree that it was better to stick with SEIU....My response was that the action that Kaiser took was illegal..that we are appealing that."

"And what was her response?"

"She was sort of unimpressed with my answer."

Marcelina Call

Marcelina Call was a shop steward and contract specialist at Santa Rosa Medical Center. She was close to the workers, well known in the 1200-employee unit. She too grappled with the fears and doubts spawned by Kaiser’s unilateral takeaways in Southern California. Call described her own frustration when union members. even friends who were close to her and respected her work as a shop steward, turned away from NUHW out of fear of losing their raises and stipends.

She testified: "I tried to show them that the information that they had been seeing was not all entirely true."

"And what was the response you got, for the most part, from your co-workers?" Malkani, NUHW attorney, asked.

"They were really scared. They were nervous."

"What was the main you tried to reach out and enlist support for NUHW?"

"That they wouldn’t get their raises, or they wouldn’t get their bonuses."

"And when you tried to explain to workers that this was in litigation...what was the response you would get?" 

"Uncertainty of what to believe. It was like they wanted to believe, and they wanted to trust because I was a worksite leader, and that -- I am someone that they looked up to and they could trust and respect. But when you put their money on their line and you jeopardize feeding their families, then they have to take a step back to reflect on what’s right for them."

Judge Parke joined in: “Is that what they told you?”

s," Call replied

Parke: How many employees expressed to you these feelings? More than 50?

Call: Yes, upwards in the hundreds. It came by conversations; it came by emails; it came by phone calls.

Stay tuned for the next installment.

Published in In Motion Magazine - March 21, 2011

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