Don’t fall prey to Kaiser’s intimidation

NotesNovember 8, 2019

Please read today’s story in the LA Times that includes quotes from our members, photos of our actions, and a strong critique of Kaiser’s focus on profits over the needs of its patients.

Several of our political allies have reached out to Kaiser this week, making the case for our settlement proposals and asking Kaiser to return to the bargaining table. Kaiser’s response has been illuminating. Kaiser executives have told our allies they don’t think the strike will be well-attended, and thus don’t see the need to return to the bargaining table.

But they didn’t reveal to our allies that Kaiser is so desperate to keep people from striking that they are invoking a Trump National Labor Relations Board ruling in favor of Walmart to try to depress turnout on the picket lines.

Don’t be intimidated by Kaiser’s scare tactics. Below is a letter from our lawyers explaining exactly why Kaiser’s warning of retaliation is an empty threat. Here are the key takeaways:

  1. There is clear and ample legal precedent that employees who chose to honor the strike are absolutely protected from retaliation.

  1. Kaiser’s retaliatory claim that our strike is an unprotected “intermittent” strike is flat out wrong and won’t pass legal muster. Not only has it been nearly a year since our last statewide strike, but this strike was called in large part in reaction to bad faith bargaining by Kaiser.

  1. Kaiser could not possibly carry out its threat of discipline. It is illegal to discipline anyone for striking, and even unlawful discipline would have to be issued uniformly to everyone who struck. Firing all its mental health clinicians for striking would be devastating for Kaiser’s public image as well as its ability to care for patients.

Unfortunately, the California Nurses Association has decided to withdraw its sympathy strike notice because of Kaiser’s threatened retaliation. However, they still told members that they can individually support our strike “by participating in any NUHW activities on your day off and/or unpaid break times.”

We understand that Kaiser’s threatening letter has caused some confusion and worry. In our view the letter was an act of desperation, an unfounded threat, and ultimately a sign that we are winning this fight. But to continue to win this fight, we need to stay strong because the strength of a collective action is that we all must participate and stand together. We are close. Stand together proudly and loudly in support of our strike and we will win, maybe even before the strike begins.

Please see below for the full response from our attorney, Latika Malkani of the law firm Siegel, LeWitter & Malkani.

In Unity,

Sal Rosselli, President

National Union of Healthcare Workers

Attorney’s response:

Kaiser’s claims that our strike is unprotected and its threats to retaliate, are factually and legally unfounded.  Here’s information about Kaiser’s representations and your rights under the law:

Employees who choose to honor the strike are absolutely protected from retaliation.  Federal law explicitly protects the right of all employees to strike, including doctors and other medical professionals. 29 U.S.C. § 157; Montefiore Hospital and Medical Center, 243 NLRB 681 (1979), enforced in relevant part, 621 F.2d 510, 514–15 (2d Cir.1980); Bethany Med. Ctr., 328 N.L.R.B. 1094, 1094 (1999) (holding that the same standards of conduct apply to healthcare employees as to employees in other industries). Federal law also protects striking employees from retaliation. The NLRA makes it unlawful for an employer to interfere with an employee’s right to strike. 29 U.S.C. § 158(a)(1). It is also unlawful for an employer to retaliate or discriminate against any bargaining unit employee who participates in a strike. 29 U.S.C. § 158(a)(3). These protections also apply to per diem and probationary employees.

Kaiser’s retaliatory claim that this is an unprotected “intermittent” strike is flat-out wrong.

  • All our strikes have been for different, distinct reasons.  The one-day strike that employees have held at certain locations have each been for very specific demands particular to each of those locations.  The NUHW leaders who have called for each of these localized, one-day strikes have very specifically stated their local demands to Kaiser management.  We know this and Kaiser knows this, and ultimately, we can prove it because we made these localized, specific demands in writing.  And when we called for these strikes, Kaiser didn’t object.  So why now?

  • Legally, this cannot be an “intermittent” strike because it’s nearly a year after our last statewide five-day strike and this strike was called in large part in reaction to recent unlawful demands and bad faith bargaining by Kaiser.  The very case Kaiser cites in its letter says that a strike that reacts to recent employer actions is not an intermittent strike.  “Also, work stoppages responding to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for the same goal and are therefore protected.”  Walmart Stores, Inc., 368 NLRB No. 24 (2019) at p. 3.  This strike is not just about patient care.  It’s also very much because Kaiser is making unlawful and regressive demands (including an unlawful LBFO), refusing to bargain in good faith, and retaliating against us for standing up for our patients.  We have filed unfair practice charges about this and are lawfully striking to protest Kaiser’s unlawful actions.

  • Kaiser’s retaliatory letter is a recent act of desperation and a sign that we are winning. Until November 5, Kaiser never took the position that any of NUHW’s prior strikes was an “intermittent” strike.  Just days ago, on October 29, 2019, Kaiser wrote a letter asking us to postpone the strike and didn’t then claim it was intermittent.  (Link to letter.)  When the one-day strikes were called, Kaiser didn’t claim that any of them were intermittent.  Why not?  Because Kaiser knows that their “intermittent” strike argument has no merit.  Kaiser is so desperate that it’s grasping at straws and using scare tactics.

  • Kaiser could not possibly carry out its threat of discipline. Legally, any discipline for striking would be a blatant and unlawful act of retaliation.  But also, as a practical matter, it’s an empty threat because it would be impossible to carry out. Think about it: do you think Kaiser will try to fire or discipline all its hard-working dedicated therapists?  Even unlawful discipline issued for striking would have to be issued to everyone who struck.  It would be beyond outrageous for Kaiser to take such action in California, a pro-labor state.  The wrath that would then befall Kaiser is bad for business.