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.