Tuesday, April 22, 2008

Fight in Ohio between SEIU and California Nurses revives old issue: When employers welcome unions at the NLRB

By Herman Benson

An angry battle in Ohio between the Service Employees [SEIU] and the California Nurses Association [CNA] calls attention to a proposed new regulation by the National Labor Relations Board that would make it easy for consenting employers to accept, or even welcome, unionization without disturbing their workers with a hostile, confrontational campaign.

Up to now, either a union or an employer could petition the NLRB for a collective bargaining election. If a union, utilizing its rights under the National Labor Relations Act [NLRA], wants to force recognition from a company, it must work hard to win over the work force. It must submit a petition to the NLRB signed by at least 30% of the work force and then win a majority of the votes in a collective bargaining election, usually hotly contested by an anti-union employer.

Under certain conditions, an employer can ask for a collective bargaining election: It may contend that an existing union no longer truly represents its workers, or it may want to resolve the demands of two or more competing unions that claim to represent its employees. In that case, the NLRB can move promptly to schedule an election: no petitions from workers are required. It is the employer, not the union or the workers, who wants this election.

Under the proposed regulation, the NLRB would provide a new swift and easy route to collective bargaining. Where the union and the employer are both willing to cement relations, they can jointly submit a consent petition to the NLRB. No need for the union to collect signatures on petitions; it need not submit evidence that it actually represents any workers. In the course of the election, no need for a campaign to convince the mass of workers, or even to keep them informed, no controversy, no class warfare, only cooperation.

For the union it’s a great opportunity. It need not spend its limited resources of time and money to campaign or even to collect signatures. In this uncontested election without fanfare, few are likely to be aroused or to vote. With just a few dependable supporters to vote yes, the union can coast in as the exclusive bargaining agent for the whole work force. The majority can come to work the day after the election to discover that, painlessly, the blessings of union representation have been bestowed upon them. No drawn-out battle, no hard feelings provoked, no enthusiasms inspired. It is simple, not a confrontation but an arranged marriage.

Up to now, unions have been campaigning for a system which would grant exclusive bargaining rights to unions without facing an election once a majority of the bargaining unit signs cards authorizing the union to represent them. But the union still has to work hard to get at least that 30% on petitions; and right wing anti-labor groups, in full-page ads, charge that unions, afraid to face a democratic vote of the membership, prefer to “coerce” workers into signing cards. The new NLRB system makes better public relations; it follows the formal rules of voluntary democratic decision, free of possible intimidation. In these parlous times, when unions fight to hold their own, when the need to organize the unorganized is so urgent, the new NLRB system seems like a union leader’s dream. Could anything be wrong?

Yet, when the SEIU sought precisely such an election in Ohio, it was forced to pull back after facing resistance from the National Nurses Organizing Committee of the CNA. (The CNA is an AFL-CIO affiliate; the SEIU is an affiliate of the rival Change to Win coalition.)

The election was requested by the Catholic Healthcare Partners to cover over 7,000 workers at nine hospitals in the state. The employer had agreed that, after the expected election result, it would recognize the SEIU as the representative of all its employees --- registered nurses as well as all other hospital employees. The SEIU, which had supported the employer’s request, was the one union on the ballot. Since the request for the election was submitted by the employer, neither it nor the SEIU was required to present any evidence that any workers actually sought union representation. Although the proposed NLRB regulation has not yet been adopted, this election would, in effect, have been the kind of consent election which the new regulation contemplates. However, it was not to be.

Everything was all set, but a few days before the scheduled election, organizers from the National Nurses Organizing Committee of the CNA turned up. In literature addressed to nurses the NNOC urged them to vote no. Management, they argued, “gets a sweetheart union that will not focus on issues important to Registered Nurses. CHP [the employer] gets increased profits and inferior RN contracts. The SEIU’s back room deals result in contracts that are among the worst in the nation…. Less than 2% of SEIU’s members are Registered Nurses. SEIU is not a professional nurses union.” Thrown off balance, the SEIU pulled out. On March 11, the day before the voting was scheduled to begin, the election was canceled.

SEIU President Andy Stern denounced the CNA action as “nothing more than a flimsy cover for out-and-out union busting that we normally see from employers, not organizations that claim to care abut workers.” The SEIU argued that the consent election was the outcome of three years of negotiations with management. “At any time during those three years,” wrote one SEIU nurse, “the CNA could have presented their union, compared themselves to SEIU and asked us to make a choice. But they didn’t.” The CNA replied that if the SEIU had real rank-and-file support, it could not have been scared off by a few leaflets; the SEIU’s withdrawal, it argued, proved that a cozy deal with management was in the making without employees’ support.

Regardless of who was right or wrong in Ohio, this dispute pitted one legitimate union against another, demonstrating that the kind of consent election foreshadowed in the new NLRB proposed regulation may not be as simple as it seems at first glance. On one hand, the NLRB would offer a painless way for a genuine union to gain entry and win over an uninterested workforce to unionism; as Walter Reuther might have put it, to unionize the unorganized. But, on the other hand, there can be dangerous complexities. There is more here than meets the eye.

The problem arises because the labor movement has had a long sad experience with various maneuvers that allow employers to set up counterfeit compliant ‘unions’ as a protective barrier against genuine unions. In the early years of the New Deal, management sponsored powerless employee representation systems: company unions that were subservient to employers. The aim: to ward off the rising new unionism of the mid-thirties. Even now, unscrupulous employers, to keep out good honest unions, sign collusive collective bargaining contracts with crooked characters who offer sweetheart deals. The new NLRB regulation could give the protective cover of respectability and legality to such collusive arrangements.

What the old company union arrangements have in common with the proposed NLRB-sanctioned system is this: a suspect ‘ union’ can slip in easily, no need for worker involvement. Of course, there are bound to be employers somewhere who, not overly preoccupied with profits, are in business for the benefit of humanity and insist on fair play and unionism. Someone once somewhere did discover such aberrant employers. But normal red-blooded American employers expect something advantageous in return for voluntarily welcoming the arrival of a union. When an unscrupulous employer signs up with racketeers, it gets a guarantee that it can pay substandard wages and can be sure of protection against the arrival of a genuine union.

In Ohio, however, management was dealing with the SEIU which everyone knows is not a company union, is not a racket ‘union’, but is a bona fide, mainstream labor organization that has already taken the lead in organizing low-paid workers and lifting their standards: unskilled, minorities, immigrants.

Nevertheless, honest and well intentioned as it may be, even the SEIU must offer something to employers to soften their hearts to frictionless union penetration, and it does. It offers gentle terms, nothing too demanding, a friendly atmosphere; Andy Stern, SEIU president, would not annoy them too much with individual grievances. In justifying these lenient compromise transactions, the SEIU argues that, in the search for organizational “density” in its “market,” the union must get its foot in the door. Presumably once it achieves that coveted “density,” it will go for broke in its “market.” Maybe.

The trouble is that the SEIU is not always breaking ground in an untilled field. Other unions are already organized in some of those "markets," unions that are already battling to defend high union standards. They argue that, just as bad money drives out good, soft unionism drives out hard. They charge that in its efforts to grab its own market share, Stern’s SEIU sometimes undercuts their standards. What appears like “density” to Stern looks like dilution to the others.

The differences that pitted the CNA against the SEIU in Ohio have erupted inside the SEIU itself, creating a bitter split between the Stern administration and one of the union’s largest locals, United Healthcare Workers-West, the 150,000- member SIU local of healthcare workers on the west coast. In 2003, under Stern’s leadership, the SEIU signed what were called “template” agreements with an association representing 284 nursing homes in California. The agreement presumably gave the SEIU new entry to about 40 of those homes. But at a price considered outrageously prohibitive by Sal Rosselli, president of UHW-W. According to Rosselli, the units created under those template agreements “may come close to becoming …company unions.” Rosselli’s local was disturbed by the impact of the agreement on the whole nursing home industry in California, with over 1100 nursing homes. According to UHW-W, one of the nursing home operators under contract with the local, presumably at high standards “told us that if we want to achieve high standards in the industry … we need to [get] rid of the ‘template’ contracts” which allow competitors to maintain lower standards.

When the California Nurses showed up in Ohio, Stern asked the AFL-CIO executive council to repudiate the CNA, its affiliate, and tell it to back off. The council refused. But it also refused to explicitly endorse the CNA intervention. The council faced a rough choice; it was impossible for it to make a satisfactory decision. The new NLRB regulation will probably pose the same unwelcome choice for unionists; they are bound to meet it with that same ambivalence.

Wednesday, April 09, 2008

On ‘democratic’ centralism: Stern’s illusion and democracy’s nightmare

By Herman Benson

Andy Stern, president of the Service Employees International Union and labor’s latest celebrity, seems to be resurrecting a neglected ideology: the concept of a militarized ‘democratic’ centralism. For him and his followers, the hope of imposing it upon a newly invigorated labor movement may be a utopian illusion. For union democracy, it is a nightmare. Hints, but only hints, of his underlying philosophy were implicit in his schemes for reorganizing his own SEIU and the whole labor movement. But its trend has become manifest as he is apparently moving to crush critics on the west coast, impose a repressive trusteeship over the 140,000-member United Healthcare Workers-West, and cut down Sal Rosselli, its president.

In February this year, Rosselli resigned from the SEIU International Executive Committee so that he could feel free to criticize what he charged was the “undemocratic practices we have experienced first hand.” The SEIU convention was coming up at the end of May. “In good conscience,” he wrote, “I can longer allow simple majorities of the Executive Committee to outweigh my responsibility to our members to act out of principle on these critically important matters. I say this with no ill will, but with a deep sense of conviction.”[Rosselli to Stern 2/9/08]

They differ over bargaining strategy, over the role of the international and locals, over the right of the membership to veto the merger and dissolution of local unions, over whether to go easy on employers to get a foot in the door for unionism. The issues in dispute are not trivial, and the charges and countercharges are correspondingly harsh. Rosselli accuses the Stern people of “company unionism” and “top-down organizing” to beef up membership statistics by any means whatsoever. They denounce him for sabotaging the SEIU drive to organize, for falsifying the record, for hypocritically benefiting from policies he now derogates.

This is no idle talk at a cocktail party; it is a serious difference over policy. He attacks vigorously; they reply in kind. So far, routine. That’s what democracy is for, to allow an outlet even for the bitterest of debates. But the problem is that Rosselli’s critics go beyond denouncing him for criticizing. They would make his very right to criticize illicit. And, because they are armed with organizational power, they would resolve the dispute not simply by democratic decision but by suppression. The irony is that they wrap autocratic intentions in the flag of a democratic “majority”. Rosselli, they insist, must go along with the “majority.” But a majority in power can always take care of itself. The essence of democracy is to preserve an orderly means of opposing a majority.

In replying to its self-posed question, “What is real union democracy?” The SEIU’s anti-Rosselli web site, “Fact Checker,” pandering to the bias against any genuine spirit of democracy asks, “Is democracy abiding by majority rule just when you like the outcome but ignoring it when you don’t?” But democracy, as we practice it in America, cherishes precisely the right of a minority to oppose the majority. ‘Fact Checker” continues in line with what has become official SEIU ideology, “ Is it democracy when 11 out of 12 workers in an industry are not even at the table?” What they mean by this muddle is what they have suggested before more clearly: members must abstain from exercising their union democracy until most workers, now nonunion, are organized. By that standard, union democracy must wait patiently for a long time, perhaps forever.

They use the boilerplate language available to any overbearing union official annoyed anytime by any critical dissident. Mary Kay Henry, international executive SEIU vice president, writes in the course of a long attack on Rosselli [Calitics.com website 3/25/08], “he is giving employers ammunition to use against workers….”

Three members of the SEIU international executive committee found Rosselli’s decision to speak out impermissible. “Just as we expect members of our local unions to unite behind a common strategy after there has been a full debate,” they wrote, “and a majority has reached a democratic decision, we as leaders must do the same.” There it is. Once a “democratic decision” is reached everyone, members and leaders, must swallow their opinions, keep quiet, and toe the line. We discuss, we decide, we unite, you shut up, we remain a fighting force. If you open your mouth against the line we discipline you. (How some might love to apply this principle to the Iraq War! The irony in this case is that, as they wrote, the SEIU was on the eve of an international convention to open in three months. If now is not the time for that democratic discussion, when?) [Regan et al to Rosselli 2/11/08]

That same tone now permeates life in the SEIU. In 2006, as the SEIU was about to run a membership referendum on creating those huge California megalocals, Stern turned the union into one advocacy monolith to guarantee a favorable outcome. He ordered, “All local unions, union officers, and assigned staff must fully cooperate in the implementation and transition process to assure that this decision is carried out in an orderly fashion…. No union funds, resources or staff may be used to oppose, interfere or undermine in any way the IEB determination in this matter.” (The referendum carried, but according to one report, only 16% of the membership voted.)

In the same spirit, applicants for appointment to the executive board of the new 45,000-member Local 521 had to sign an oath of loyalty to the union administration, including these assurances: “I will not … engage in personal attacks on other members, staff, or leaders at unions meetings, in the press, or other literature, or venues…. Once a decision has been made, I will support that decision to members and others…I will not …take … legal action against the union for actions they take in their legal role as leaders as long as I remain a member of this appointed board or committee.” Come weal, come woe; high or low, no one can remain in any official union position and ever ever act against any misdeeds by other officials.

Here then is how the labor movement would operate if the system being implanted by Stern could take root and flourish:

A policy is adopted, say at the international convention, the union’s highest constitutional authority --- for the sake of argument we make the generous assumption that it has been a ‘democratic’ decision. Then for the next five years until the next convention (four years for the SEIU) every union institution and representative, must fall in line. No criticism permitted: every hired staff employee, every elected officer in every local and in the international, every steward appointed or elected, every editor and PR spokesperson, every executive board member of every local must propagate the vaunted ‘democratic’ decision. None can oppose it or publicly express misgivings on pain of swift dismissal. Stern envisions a monolithic disciplined army of thousands, all spouting the politically correct official line. After five years, during which everyone sang the same notes in harmony, comes the next convention; and at last, presumably, democracy’s brief moment has arrived.

Proceedings at the convention, as always, are carefully manipulated by the administration. Under the Stern regimen, those in power will already have been safely protected against criticism for the previous five years. If, at the convention, venturesome critics are unusually resilient, if they are not demoralized by five years of deadly uniformity, if they are lucky enough to get the floor and keep it before the question is called, they might get five minutes in the sun, maybe even seven or ten. Then it is all over. The delegates, people who knew how to stay on top during those five silent years, adopt the new official policy. The period for ‘democratic’ debate is over. Time to unite and fight and bite your tongue. Five new silent years loom.

But is this bureaucrat’s dream likely to come alive? Perhaps in part, but never in full panoply. By now, websites and the Internet afford too many ways for members and officers alike to evade the proscriptions on democracy. Federal law offers some protection for civil liberties for members in their unions. Stern will never have full scope for the fulfillment of his dream; nevertheless, as we see in California, federal law and the union constitution still provide ample means for chilling dissent.

Wednesday, April 02, 2008

Stern’s threat to trustee west coast SEIU local poses danger to democracy in labor movement

By Herman Benson

Andy Stern, international president of the Service Employees International Union threatens a trusteeship over the United Healthcare Workers-West and the removal of its president, Sal Rosselli. The reach of the imminent trusteeship is awesome: With 140,000 members, this local enrolls about one-tenth the total membership of the whole SEIU. It represents registered nurses and non-professional healthcare workers in scores of institutions. Rosselli, its president, is an eminent figure in the labor movement and in the politics of California. He had been SEIU state president and a member of the union’s international executive committee. Inside the SEIU he has been a vigorous critic of Stern’s policies, actually the only outspoken critic with a strong power base in the union. Wipe out Rosselli, and Stern, with an unchecked monopoly of power, can continue to move anywhere in any direction without restraint.

But it is not the scope of this trusteeship that would make it unique. Over the years, hundreds of union subsidiary bodies have been trusteed by their international unions. Most have been relatively small locals taken over by their internationals, sometimes for legitimate reasons, and sometimes to suppress a local leadership out of favor with an arrogant international officialdom. Occasionally, a major subsidiary came under trusteeship, like the 120,000-member AFSCME’s DC 37 in New York; but in that case, district and local officers had been indicted for stealing local money and falsifying a contract referendum.

What would make a current trusteeship move by Stern different from all the rest is this: for the first time since the adoption of the LMRDA in 1959, a massive trusteeship has been threatened against so major a section of a union for politically repressive objectives. This pioneering achievement can be credited as another Stern innovation. The basic reality has been buried, in recent days, by a mudslide of charges and countercharges in letters, emails, official documents, and news reports.

In January 2007, Rosselli’s local criticized a deal between Stern and California nursing homes as a case of “company unionism.” Stern was impelled, or compelled, to abandon the arrangement.

In January 2008, Rosselli refused to run for reelection as SEIU California state president, accusing Stern of rigging the rules to assure the victory of his pre-selected choices.

In February, he resigned from the SEIU International Executive Committee, freeing himself to speak openly in the union in advance of its international convention scheduled to begin at the end of May. In his letter, he wrote of the “undemocratic practices we in UHW have experienced first hand.” Since his local was entitled to over a hundred delegates, Rosselli would have been strongly represented at the convention; but a trusteeship would bar them.

On March 24, Stern confronted Rosselli with a shopping list of charges “regarding Membership Concerns and related Constitutional Obligations.” Implied was the threat of an imminent trusteeship; Rosselli was ordered to provide all related documents by March 28 and a detailed written reply to the charges no later than April 4. Not much time; Stern seems anxious to act against the local before the convention opens. As in most preliminary justifications for union trusteeships, the request for documents and statements appear to be simply a showcase exercise to comply with the law’s requirements for due process and to display a proper respect for PR opinion. The selected victim is usually convicted in advance. In this instance, the seven charges against Rosselli foreshadow a predictable outcome.

Stern’s SEIU is currently in competition with the California Nurses Association, an AFL-CIO affiliate. In Puerto Rico, the SEIU is trying to supplant a militant independent teachers union which is under attack by public authorities. Two of the charges against Rosselli accuse him of disloyalty to the SEIU by ill-defined “contacts” with the AFL-CIO, the CNA, and the Puerto Rico teachers. (Actually, if anything has cramped Rosselli’s ability to prepare for this attack by Stern, it has been his insistence on demonstrating his loyalty to the SEIU by avoiding any appeal for support outside the union.)

Two of the charges, not clear to a nonmember of the SEIU, relate to a dispute over collective bargaining procedures; mixed in with these, is a vague hint at a conspiracy with the CNA and/or the AFL-CIO.

After Rosselli challenged Stern in January 2007, it seemed likely that the Stern forces would use their formal union powers to restrict the jurisdiction of his local and transfer away half of his membership. In an effort to ward off this move, Rosselli’s local polled its members to permit it to express their loyalty to their UHW-W. One charge expresses a disapproval of the referendum as “a phony ballot scheme,” In another charge, Rosselli is accused of chilling the free speech rights of his members. Since no record is cited of earlier appeals by UHW members to the international, this accusation apparently falls out of the blue. (Here the pot calls the kettle black. At AUD we know that Stern faces precisely the same accusation from a wide range of SEIU members.)

This varied assortment of charges seems like a goulash, hurriedly stirred together to make a case in advance of the looming convention.

The first of the seven charges presents defendant Rosselli with an intricate Catch 22 dilemma: The local in effect is threatened with trusteeship for taking steps to defend itself against the imposition of a trusteeship. When the local realized that, in retaliation for its criticisms, Stern was almost certain to try to trustee the local, it decided to take an advance defensive measure. (Its misgivings obviously have proven to be well founded.) And so, the local executive board voted to put money into a separate tax-exempt fund protected from seizure by Stern, with the express aim of defending membership rights.

When a trusteeship is imposed, all local assets are impounded by the international; the local loses control of its money; their leaders are cut off the payroll; and, from then on, the local members and their elected officers, stripped of cash, are deprived of effective means of defense. Without money, the local is incapable of mounting a legal challenge to the trusteeship. But that is not all!

Under federal law, a union trusteeship is presumed valid for 18 months; it has proven to be difficult, nearly impossible, to oust a trusteeship during that 18 months. In that time, the international has total control over the local administration and all its assets. It can use that time, by fear, favor, or purchase, to create its own Quisling puppet regime and to demoralize, suppress, or even expel, its critics.

However, even under a trusteeship, members retain certain democratic rights protected by the LMRDA; but in the main, these rights can be enforced only by private suit. Without money these rights become a fiction because the trustee’s victims can’t afford the costs of a federal lawsuit. The independent fund established by UHW-W, free from Stern’s control, would give members resources to resist the imposition of the trusteeship and, if it is imposed, would help defend their rights while it remains in effect. Consistent with his drive to eliminate opposition, Stern would deprive his critics of their right to self-defense. The first of the charges against Rosselli attacks the local’s right to establish this fund in defense of democratic rights.

In the flurry of controversial exchanges that have cluttered up the internet as this battle escalates in the SEIU, there have been charges and counter-charges over “top-down” organizing, collective bargaining strategy, who stands for what and where, who has the best organizing record, “density” in the market place, centralization v. democracy, mergers and local autonomy. All these are necessary and legitimate subjects for debate and discussion in our evolving labor movement. But, for the moment, these discussions cloud over what is acutely involved in the SEIU.

This conflict is not now just a power struggle between Stern and Rosselli. It transcends any legitimate debate over policy. At stake is not who is right or wrong on critical issues, but whether it is even permissible or possible to have a genuinely free discussion. The suppression of democratic rights inside many of our unions is nothing new (Subscribe to Union Democracy Review for details), but the Stern camp is elevating a common practice into an ideological extreme. Our website will discuss that subject soon.

(For more SEIU-related information, see AUD's list of links to SEIU member websites, and the blogroll on the right of this page. See also SEIU's Fact Checker website.)