Based on several questions received from members of the SEIU-UHW Kaiser Division Steward Council, the firm of Rothner, Segall, Greenstone and Leheny put together the following question-and-answer document regarding a potential decertification election among three units of Kaiser members. The information included is based on the National Labor Relations Act and precedential decisions of the National Labor Relations Board and the courts.
We hope that this document can be helpful in answering many of the questions you may have. Please feel free to pass this information on to all KDSC members, other SEIU-UHW leaders, and your fellow members.
Q: What happens to our contract if we vote to change unions?
A: If you vote to change unions, your current SEIU-UHW collective bargaining agreement becomes null and void as of the date that the results are tallied. If there are objections to the election, your current collective bargaining agreement will become null and void as of the date that the election results are certified.
Wrong answer, lawyer boy. After we vote in NUHW, federal labor law requires our employer to maintain the wages, benefits and other conditions of employment in our current contract. With the terms and conditions of that contract in place, we’ll sit down and bargain for the improvements that we want to make in our next contract. The National Labor Relations Board and the U.S. Supreme Court state that it’s illegal for an employer to unilaterally change the terms and conditions of our work after we select a union to represent us. Such actions would violate Section 8(a)(5) of the National Labor Relations Act. NLRB v. Katz, 369 U.S. 736, 743 (1962); Consolidated Printers, Inc., 305 NLRB 1061, 1067 (1992).
You forgot to mention the takeaways that Kaiser is imposing on union membership - with your tacit blessing and agreement - and notwithstanding any votes taken by the membership.
Q: How soon can we negotiate a new contract if we change unions?
A: That depends. If you change unions, your contract automatically terminates. While the employer would have a legal obligation to bargain with NUHW, there is no guarantee that this bargaining would result in a contract any time soon. In fact, you may not get a contract at all (on average, first-contract negotiations fail 44% of the time and only 38% succeed within one year ). Also, nothing can guarantee what the terms of a new contract would be. Given the ongoing economic crisis and takeaways Kaiser is imposing on non-union and management employees, if you give up guaranteed pay raises, healthcare and pensions by switching to NUHW, it is very possible you will not achieve the same level of wages and benefits.
See the lawyer's response to the first question above, and compare it to this answer - they are dimetrically opposite. Either the standing contract remains in place after Zombie UHW is kicked to the curb, or it doesn't. You can't have it both ways.
Q: Why is NUHW telling people that if we change unions, NUHW will just take over our current contract, and everything is guaranteed to stay the same?
A: If no contract is in effect, the employer is required to maintain wages, benefits, and other conditions of employment in the prior contract until the parties bargain to impasse - that is, only until the parties have reached a stalemate and further bargaining over a new contract is futile. At that point, the employer is free to enforce its last offer, even if the terms of the offer are worse than those existing in the prior SEIU-UHW contract.
Wrong, wrong and wrong. The moment that NUHW is recognized by one of its bargaining units, CKPU will admit NUHW as a member - unless, of course, SEIU or Zombie UHW unilaterally attempts to block NUHW's entrance into the Coalition. However, given the fact that the NUHW leadership is the group that actually put together both the CKPU and the LMP group, I'm thinking that NUHW will be the ones joining the coalition and it will be SEIU who will be "going it alone."
Q: If we change unions, will we be able to take part in national negotiations with Kaiser management?
A: No. National negotiations are conducted by the Coalition of Kaiser Permanente Unions (CKPU), which represents more than 100,000 workers nationwide. As a member of the CKPU, SEIU-UHW participates fully in these negotiations, and all SEIU-UHW Kaiser agreements (including your current contract) are based on the national agreement. NUHW is not a member of the CKPU, does not participate in these negotiations, and would not be a signatory to the national agreement. Instead, NUHW would have to go it alone and bargain directly with management for three separate agreements for fewer than 2,500 Kaiser workers spread out over almost 100 worksites. Also, the Labor Management Partnership between the CKPU and Kaiser is governed by the national agreement. Because NUHW is not a member of the CKPU, NUHW members are not eligible to participate in the LMP or its initiatives.
Pick one and go with it, shyster! Either the existing contract is in force upon a bargaining unit change, therefore bargained wage increases stay in place, or it isn't. There isn't going to be a unilateral declaration of impasse before bargaining starts with NUHW (as that is a sure-fire way to lose an arbitration), and because of the contract bar language such negotiations are not going to take place until less than eight months prior to expiry of the existing contract. Unless, of course, Zombie UHW tries to rush through an extension of the existing contract. Which would then be in force until it expires, no matter the bargaining unit. Or not. (Sorry, I just can't follow the Zombie UHW lawyer's logic path)
Q: If we change unions, could I lose the upcoming raises and performance payments that are scheduled in our SEIU-UHW contract?
A: Yes. Although the employer is required to maintain terms and conditions of employment while it bargains with the new union, if impasse is reached, it can enforce its last offer. Hence, if the parties reach impasse prior to a scheduled wage raise, and the employer's last offer does not include the wage raise, the once-guaranteed wage raise would disappear.
See above regarding impasse.
Q: Are my current health/retirement benefits guaranteed if we change unions?
A: No. Like wages, health and retirement benefits are terms and conditions of employment that an employer must maintain only until it bargains to impasse. Once impasse is reached, an employer may enforce its last offer, even if it contains terms and conditions which are worse than the previous contract.
Bull, and shit. In a three-way election, if there is no clear majority expressed, a run-off election is conducted 30 days hence with the top two vote-getters going forth. There is no way a "no union" vote is going to win at Kaiser, unless SEIU sides with KP management to achieve that end (see posts below regarding SRMH for more Zombie UHW background on that).
Q: Could we end up with no union?
A: Yes. In an election, the choices would be SEIU-UHW, no union, or NUHW. If neither union wins a majority vote, there will be no union at all. If no union wins, not only is your contract is null and void but your employer will be allowed to set wages and working conditions without bargaining with anyone. Additionally, all employees will be at-will, since there will be no grievance procedure or requirement that the employer have just cause to discipline or discharge an employee.
Oh joy, we're back to the "contract will disappear instantaneously" line. I really do wish they'd pick a position and stick with it.
Q: If we change unions, can we still appeal firings, layoffs, or other unfair employer actions to an independent arbitrator?A: No. Arbitration would not be available to resolve disputes arising while no contract is in effect. SEIU-UHW could only pursue arbitration of grievances that arose under its contract before it became null and void.
Folks, this stuff is tiring, but the tactics are clear - it is SEIU's wish to scare the living shit out of its membership, such that they can maintain their control. They are using fear and misinformation in order to (IMHO) terrorize common, everyday workers into trusting them with their money and their collective future. This is not the behavior of a strong and progressive and powerful union, but more similar to the behavior of a cult.
The NUHW website says it best:
Q: Why are SEIU organizers using scare tactics?Fear has NEVER been a good long-term motivator. It's too bad that a once-great union has tumbled to this.
A: Think about it. The SEIU organizers have little to rely on besides scare tactics. SEIU UHW-W is run by trustees who don’t even come from California
and have absolutely zero experience in bargaining with our employers.
The few contracts that they’ve negotiated are vastly inferior to contracts bargained by the old local. What kind of track record is that? Furthermore, virtually all of the trusted staff from the old local have quit their jobs because they want to be part of NUHW – a union of trusted leaders who have decades of experience and a proven track record of winning industry-leading contracts for healthcare workers.