On July 14, 2011, National Labor Relations Board (NLRB) Administrative Law Judge Lana Parke set aside the historic October 2010 Kaiser Services and Tech employees' election. The contest between the National Union of Healthcare Workers (NUHW) and Service Employees International Union (SEIU) was the largest private-sector labor vote in 70 years. Forty-three thousand statewide voters employed in over 300 locations were included.
Parke's ruling constitutes a major event in the labor movement. The NLRB does not lightly set aside union representation elections. Only when misconduct is egregious and pervasive, when the impact on voting is significant, are union elections overturned.
No official date for the rerun election is set. Should the rerun take place sooner or later? That is the question to be decided by the Oakland NLRB (Region 32).
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Traditionally, overturned elections, where the effects of misconduct can spill over into the next election, are followed by a cooling-off period, or some kind of rectification. SEIU, however, opposes any “cleansing period.” It continues to lobby the NLRB for a quickie election.
If we understand why the Kaiser election was overturned, the need for a cleansing period becomes obvious. The NLRB should determine the timing of the next election according to the extent and nature of the SEIU misconduct that rendered the first contest null and void.
The Two Phases of the Case Against SEIU
There were two phases to the case for setting aside the Kaiser election. The first concerned the illegal actions of Kaiser; the second concerned the role of SEIU in turning Kaiser's unlawful takeaways into threats against members of SEIU who vote for NUHW.
NUHW Victories and Kaiser Takeaways
In January 2010, NUHW won three landslide elections in Kaiser's Southern California professional units. By margins of 95 percent, 79 percent and 87 percent, Kaiser RNs, Psyche-Social Pros and Healthcare Professionals voted to be represented by NUHW. As if in retaliation, Kaiser withdrew contracted, scheduled raises, tuition reimbursements and stipends from NUHW members.
On December 13, 2010, NLRB Administrative Law Judge William L. Schmidt found Kaiser guilty of violating the law. He ruled that unilateral takeaways “were inherently destructive of the basic employee right to freely choose a bargaining representative.” Schmidt based his ruling on a pivotal Supreme Court decision (NLRB v. Katz, 1962) that guarantees all workers the right to choose a new union without risking benefits. Employers (as well as unions) have an obligation to maintain the status quo during elections.
Schmidt's ruling (which ordered Kaiser to repay the victims) came far too late. The damage was done. The larger Kaiser election was over in October.
Parke cited Schmidt as a precedent, but in the case before her court, she held SEIU primarily responsible for destroying the integrity of the election.
The leaders of SEIU exploited the Kaiser takeaways for their own gain. Instead of expressing solidarity or sympathy with co-workers harmed by employer abuse of power, SEIU used Kaiser's illegal actions to threaten its own members who were considering NUHW as a choice on the ballot.
Early in the hearings, Judge Parke framed the essential issue of the trial: “Kaiser, having committed unfair labor practices, SEIU having utilized the commission of these unfair labor practices – would that in fact have a deleterious effect on the employees right to choose freely in the election?”
The testimony and evidence before her was overwhelming. SEIU's entire campaign was predicated on unlawful takeaways and sustained threats – SEIU threats communicated to the entire workforce via house visits, robocalls, glossy flyers, posters, meetings held jointly with Kaiser management.
Parke's reasoning is convincing. She argues that SEIU propaganda was more than flawed predictions or misstatements. After all, lying in itself is not illegal in elections. But SEIU propaganda flyers were “menacing reminders that Kaiser not only could, but already had, unilaterally withheld benefits when other employees had chosen to be represented by NUHW. SEIU references were to unlawfully executed and continuing behavior, not to speculative, future behavior.”
Parke goes on: SEIU “stoked unwarranted and coercive voter fears.” SEIU interfered with “employees' free and uncoerced choice in the election to such an extent that it materially affected the results of the election.”
A Cleansing Period Is Imperative
Parke did not overturn the Kaiser election because of miscounted votes or minor technicalities, problems that could be remedied in a short amount of time. She set the election aside because the atmosphere of fear and coercion made genuine free choice difficult or impossible. When the dogs of fear are unleashed, it takes a long time to call them back.
That is why the NLRB should reject the SEIU attempt to rush the second election. SEIU violations were so serious, so pervasive and volatile in their effects, as to warrant a transition period to make a new fair election possible. A cleansing period is not punitive; it's remedial. It will take many months before the atmosphere can be cleared. On the other hand, if SEIU succeeds in getting a quick election, SEIU effectively nullifies the impact of Judge Parke's ruling.
Because of SEIU blocking actions, it took close to two years to schedule the Kaiser election. SEIU blocked the Children's Hospital election (won by NUHW this week) for over 900 days.
A cleansing period, in contrast, is not a delay. It's a process that safeguards the integrity of employees' right to vote free of threats and fear. A cleansing period is the least we can request from the NLRB in light of Judge Parke's sagacious ruling.