Laboring to unite

Imagine a time when healthcare unions were endlessly fractured, when labor leaders spent as much time launching public relations attacks and raiding parties against one another as they did trying to organize new workers.

It shouldn't be too hard to imagine—that was the reality only a year ago.

Today, however, union organizers are singing “Kumbaya” around much larger campfires and banding together under new federations and cooperative anti-raiding agreements. Union leaders say they've been forced to grow larger to push their agendas in Washington and to compete with the ever-expanding corporate employers on the other side of the bargaining tables.

Organized labor, in other words, has discovered that its philosophy of workers finding strength in numbers can also apply at the organizational level as well.

Among the developments in the past year, two of healthcare labor's most vehement enemies have signed and publicized a peace accord; six state nurse associations have banded together into a new federation; and three more large nurse unions have joined together to form what they're calling the “super union” of nurses.

In the process, bitter enemies like the AFL-CIO and the Service Employees International Union have suddenly found themselves with fewer degrees of separation.

“I think the staffing crisis across our industry, which is getting worse and worse because of chronic understaffing … is driving us to link arms with our sister unions,” says Mary Kay Henry, an international executive vice president with the SEIU, which represents more healthcare workers than any other labor group. “We think that's necessary now more than ever because of healthcare reform.”

Experts say developments in Washington have presented many reasons for labor to join forces in support of a single agenda. That includes efforts toward the future passage of some form of card-check legislation—known as the Employee Free Choice Act—which would establish a union if a majority of employees signed a petition or authorization card, bypassing the secret ballot. Then there are the pending Senate confirmations of three labor-friendly members of the National Labor Relations Board, and the already seated new secretary of Labor, Hilda Solis. Unions are also keenly interested in the passage of healthcare reform legislation to constrain the insurance costs that have been devouring money that might otherwise have gone toward wage increases.

“They're putting their differences aside because there's a bigger prize, and they're focusing on that,” says James Trivisonno, president of Detroit-based IRI Consultants.

For all the cooperation, though, the unions have not yet been able to leverage their newfound cooperative spirit into the ultimate goal—a larger share of healthcare workers being organized across the industry. Despite widespread expectations for healthcare union growth in 2009, workers have remained in a quiet period, with the overall number of union elections actually falling from the year before, according to IRI Consultants' semiannual report.

In 2008, healthcare unions held 299 elections, winning 72% of them. But in the first half of 2009, only 113 elections were held, with labor winning 73% of them, the IRI report says.

Although the number of petitions for elections is on pace to exceed 2008, trends indicate that most of these will be either withdrawn, dismissed or nullified before elections can take place. In the first half of 2009, 57% of election petitions were withdrawn.

Observers say healthcare union officials prefer to withdraw their petitions prior to elections if it appears they are going to lose a vote, which contributes to their higher-than-average success rate at the ballot box. Also, IRI authors noted that most of the recent uptick in union petitions is attributable to the anti-SEIU breakaway union, National Union of Healthcare Workers, which has seen nearly all of its petitions face legal challenges from the SEIU.

And for all the rhetoric about friendship and common goals, there remain several notable splits in the healthcare labor world that show no signs of repairing. The nurse “super union” actually formed after more than half of the members in one of the three founding organizations left the group in protest of then-ongoing merger talks with the large and ever-growing SEIU.

Skeptics say it's too soon to tell whether the newfound cooperative spirit will last in the long run, or if it's only designed to accomplish short-term goals and aggregate union dues into larger and more influential pots of cash.

“It's sort of much ado about nothing, quite frankly. We haven't seen the trend as a real trend. We've seen more of an opportunistic reason that is driving this among different labor organizations and labor federations,” says Chicago labor lawyer K. Bruce Stickler of Drinker Biddle & Reath. “The reality is that individuals are struggling, and they don't see the link to organized labor to improve their situation at home.”

Stickler said that on Oct. 26. But in a sign of how quickly the environment was evolving, he softened his skepticism in an interview just a week later, when the third and final of the three unions that are joining to form the “super union” overcame internal dissension and formally voted to join the larger group.

“Take heed, the time for preparation is now. We have been set up for a strong right hook called ECFA that may never come, while we may be counterpunched with all this consolidation between unions,” Stickler said Nov. 4, referring to the Employee Free Choice Act. “All of it augurs for preparation now. Just be prepared.”

Opinions are split on whether the long recession will benefit organized labor. Proponents say the downturn will cause people to seek out the job security and higher pay offered by unions, while opponents say nonunion workers don't want to lose even more of their income to union dues, especially when unionization has not prevented layoffs at hard-hit hospitals.

National politics are another part of the reason for all the newfound collaborative spirit. Observers agree that President Barack Obama, who enjoyed huge union support in 2008, has made clear his desire for unions to set aside their differences and speak with one voice as they press for all the things they want from Washington. Former U.S. Rep. David Bonior (D-Mich.) in April convened the National Labor Coordinating Committee, in which the AFL-CIO, SEIU and nearly a dozen other labor leaders came together to talk about unification and common strategies.

“We stood together in support of Barack Obama and pro-worker candidates in 2008; and now stand together on the brink of passing both labor law and healthcare reform,” according to a July 8 statement from Anna Burger, chairwoman of the Change to Win coalition, a group of five unions, including the SEIU, that famously broke away from the AFL-CIO in 2005 in order to start more aggressive unionization drives. The statement came a week before the joint committee was scheduled to meet with Obama to discuss labor policy issues.

However, it's not clear that workers will buy into the new unity.

Union leaders say they don't think their divisive past is a turnoff to new members, but those on the management side say it seems unlikely that workers being courted by organized labor will forget the interunion bitterness, in which healthcare unions were raiding each other's memberships, and telling workers that it would be better not to be represented than to join a rival's organization.

“They've spent so much time in the past fighting each other in particular areas, vehemently and with a lot of vitriol … that I think there's a lot there for these new unions to overcome,” says Dan Rodriguez, vice president of labor relations for 53-hospital Tenet Healthcare Corp., which has labor agreements with the SEIU and the California Nurses Association/National Nurses Organizing Committee, or CNA/NNOC.

The SEIU, by far the largest player in the industry with more than 1 million healthcare workers, has in particular been dirtied by mudslinging in its public battles with the CNA/NNOC, and with the National Union of Healthcare Workers. The SEIU has called a truce with the former and waged a public relations counterassault against the latter.

Nationally, union membership has suffered while the unions stepped up their infighting. Among all industries, union representation reached an all-time low in 2006, with just 12% of the workforce belonging to a union. In 2007, the union-membership rate showed its first positive growth in more than two decades, rising slightly to 12.1%, according to the U.S. Bureau of Labor Statistics.

The Union Membership and Coverage Database, maintained by researchers Barry Hirsch and David Macpherson using BLS data, says 17% of hospitals' 6.2 million workers were unionized in 2008, the most recent data available. Among nurses, nearly 20% of the 2.7 million R.N.s in the nation were unionized.

Although experts predict a much higher number of unionization petitions to be filed in 2009 compared with last year, it's difficult to speculate how many would result in elections, let alone union victories.

As organized labor membership figures dwindled in part through the use of aggressive anti-union consulting by employers, unions have experienced a corresponding uptick in the aggressiveness of their own tactics, according to Rose Ann DeMoro, executive director of CNA/NNOC, which is regarded by management labor attorneys as one of the most aggressive unions to contend with.

“Union-busters end up feeding off the healthcare industry,” De Moro says. “Weaker unions fall to the wayside in trying to confront that. … The more formidable organizations are the ones that have survived these times.”

Observers say no other healthcare union collaboration sparked more discussion or scrutiny than when the SEIU and the CNA/NNOC made the surprise announcement in March 2009 that they had signed a formal truce.

Here was a feud so intense that just one year earlier, the CNA/NNOC effectively squashed the unionization drive that was in progress at nine Ohio hospitals owned by Catholic Healthcare Partners after the Cincinnati-based system struck a labor-neutrality agreement with the SEIU.

The CNA/NNOC blanketed the 8,100 employees who were set to vote with negative information about what it called a “backroom deal” between its rival labor union and the health system, causing the two sides to call off the elections before all the votes could be cast.

“No question that benefited the employer there,” says management labor attorney Mike Asensio of Baker and Hostetler in Columbus, Ohio. Although the truce between the SEIU and the CNA/NNOC has not yet led to any joint-organizing drives that have resulted in new bargaining units, Asensio says the new cooperation is already evident in the lack of negative campaigning between the two groups.

The agreement essentially spelled out an arrangement in which the CNA/NNOC would organize nurses and the SEIU would form units from the other six types of healthcare workers in hospitals, such as service workers and nonprofessionals, skilled maintenance workers and clerical staff. Yet the CNA/NNOC intends to maintain its board membership with the SEIU's major rival, the AFL-CIO.

One major outlier to the consolidation trend is California's National Union of Healthcare Workers. The NUHW is an Oakland-based breakaway organization led by former SEIU officials who were ousted by the international union over alleged financial irregularities after months of infighting (Feb. 2, p. 12).

NUHW officials want workers at California hospitals to decertify their SEIU units and join their new group. In the first six months of 2009, the NUHW filed at least 82 petitions to form or decertify bargaining units, which was a major reason why California accounted for nearly half of all the petitions for union activity in the country in the first half of 2009.

Yet the NUHW has found little success so far, collecting no dues yet and having just one election on the calendar. Management labor attorney G. Roger King of Jones Day told an audience of healthcare human resources executives at a Chicago conference Nov. 3 that the NUHW and its interim president, Sal Rosselli, were approaching the status of being nonfactors in the labor movement because of their low success rate so far.

“If Rosselli survives, he gets his beachhead in Northern California and then he moves east,” King says. “He is organized, he is charismatic, and he needs to be watched closely.”

Rosselli says NUHW officials “expect the floodgates to open” in coming months, predicting that the upstart group would overcome the challenges filed by the SEIU to its petitions before the NLRB. In particular, he noted plans to refile a petition to represent a 45,000-member bargaining unit of Kaiser Permanente workers in June 2010.

However, Rosselli disputes characterizations that the NUHW is running counter to the spirit of unity in the healthcare labor movement. Rather, he says the roots of the split with the SEIU lay partly in the international union's demands that the Oakland local agree to transfer 65,000 of its workers to a Los Angeles-based SEIU local—a move that would have contradicted the spirit of cooperation.

“We were resisting splitting the union apart without a democratic process,” Rosselli says. “We philosophically believe all healthcare workers should be in one union, and (the SEIU) was trying to split it apart … We support consolidation of workers if workers support it and get to vote on it.”

Although the changes causing the newfound optimism in the healthcare labor movement affect all kinds of bargaining units, the forces uniting to organize nurses constitute a distinct movement within the industry.

On April 16, the nursing associations of six states—Montana, New Jersey, New York, Ohio, Oregon and Washington—banded together to form the new National Federation of Nurses.

All had formerly been affiliated with United American Nurses, a nurses-only union that began as an offshoot of the American Nurses Association. However Barbara Crane, president of the NFN, says the six associations decided to break away from the UAN and join together in direct reaction to the then-ongoing merger talks between the UAN and the SEIU. The move took about 70,000 members from UAN, leaving that union with 40,000, Crane says.

“We left the UAN because it appeared to us that we were going to be swallowed up by a nonnursing union,” Crane says. “We did not want to be swallowed up and become just a small speck on the large screen of SEIU.”

On April 30, the UAN entered into a provisional affiliation agreement with the CNA/NNOC and the Massachusetts Nurses Association to establish an interim governing structure for a new “super union” called National Nurses United. UAN officials say they'd been meeting with the two groups since January to work out details for how to merge.

All three groups have approved the merger, including a vote by UAN members on Nov. 2, clearing the way for the formation of the NNU at a Dec. 7 meeting in Arizona. Officials with the nurse unions have already said they intend to try to maintain their seats within the AFL-CIO, whose new president, Richard Trumka, is scheduled to speak at the NNU founding convention in Scottsdale, Ariz.

The NNU projects it will have 150,000 members, although Stickler of Drinker Biddle estimated the final tally would be closer to 125,000 because of disaffection among some state nurse groups within the UAN who appear likely to part ways with the union.

Nurses are already the most commonly organized group of workers in hospitals, followed by service workers and nonprofessionals, and skilled maintenance workers. The latest survey by IRI Consultants, conducted in mid-2009, found that 71% of hospitals with union representation had at least some of their nurses organized. Employers also reported that nurses were the most targeted class of workers in organizing drives in the first half of 2009.

About 86% of employers whose staffs were not already unionized reported in the IRI survey that R.N. organizing was a particular concern. “It's a new day,” DeMoro says, adding that employers are keenly aware of what's happening in the nurse-organizing world. “It's formidable, no doubt about it. The smaller chains have reached out to me to figure out what it means … It's red alert, the flags are up.”