Judge Rules for Kaiser in Union Dispute

     SAN FRANCISCO (CN) – A federal judge dismissed a fledgling healthcare union’s claims that Kaiser Permanente manipulated union elections in violation of the National Labor Relations Act.
     Officers from the Service Employees International Union-United Healthcare Workers broke away and formed the National Union of Healthcare Workers in 2009 after disputes over union governance. The two unions compete over the representation of appproximately 45,000 Kaiser workers in California.
     After the National Labor Relations Board ordered an election for Kaiser’s California workers in 2010, NUHW and nine Kaiser employees sued the healthcare giant in Federal Court.
     The NUHW claimed Kaiser improperly favored SEIU-UHW by paying salaries and benefits to union reps for time spent campaigning for SEIU in the months before the election – which SEIU won.
     The NUHW appealed the election results to the Labor Relations Board and accused Kaiser of unfair labor practices.
     While the board declined to weigh in on Kaiser’s role, it found that irregularities prevented a fair election and set aside the results.
     The new election will be held this month, as evidenced by the inundation of ads on California TV stations, paid for by NUHW.
     In dismissal, U.S. District Judge William Alsup noted simply that Kaiser Permanente pays the salaries and benefits of union officials, per a collective bargaining agreement with the union.
     “That agreement requires Kaiser to provide wages and/or benefits for three categories of union reps,” Alsup wrote. “The first two are ‘shop stewards’ and ‘contract specialists,’ who together are responsible for administering the collective bargaining agreement at the direction of the union. Their duties include processing employee grievances, training union reps and attending investigatory meetings, among other things. Shop stewards and contract specialists continue to receive their salary and benefits for time spent attending to union business.”
     Alsup found that Kaiser also pays benefits and accrued leave – but not salaries – to “lost-timers,” Kaiser employees who request up to one year of leave from the hospital and go to work as union staffers.
     Both parties agree there are more than 1,000 shop stewards and contract specialists and 20 lost-timers assigned to Kaiser California facilities.
     Alsup noted that while Kaiser’s actions appear to violate federal labor law, courts have long held that union reps such as shop stewards and contract specialists benefit both union and employer and constitute an exemption to the law.
     “The complaint suggests that Kaiser should supervise the union reps to make sure their activities are limited to those contained in the collective bargaining agreement. Taken to its logical endpoint, that argument would require Kaiser to detect when the union reps were, for example, surfing the Internet while on duty, then dock their pay for those wasted minutes,” Alsup wrote. “Generally, the inquiry must focus more on the employer’s intent at the time of entering the agreement than at the time of compliance with its terms. This order finds that, as to the shop stewards and contract specialists, Kaiser’s motion to dismiss must be granted.”
     Alsup declined to find that the collective bargaining agreement regarding lost-timers is illegal, since NUHW failed to raise the issue until late in the case. In any event, even if Kaiser did allow “a geometric increase in lost-timer leaves of absence” before the election the SEIU-Kaiser agreement stands, according to Alsup.
     “The terms of the instant collective bargaining agreement regarding lost-timers are bare-bones: They merely provide that employees may apply to take up to a one-year leave to work for the union, during which time their benefits and seniority continue to accrue,” Alsup wrote. “Most payment arrangements entered into in a collective bargaining agreement are presumed to be openly and fairly negotiated for, and thus would not implicate the type of bribery the law is meant to prevent. But if contractual terms regarding lost-timers were vague enough that they could be fleshed out by custom and usage in a way that implicated improper influence by an employer, then the employer’s conduct might be found to violate the law.
     “Absent specific allegations regarding any such course of conduct, however, Kaiser’s motion to dismiss must be granted.”
     Alsup gave NUHW until April 29 to file an amended complaint limited to the lost-timer issue only, urging the union to “plead their best case.”

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