Statewide Strike Questions and Answers
December 6th, 2018
Why are NUHW members going on strike?
Four-thousand NUHW members at Kaiser Permanente are going on strike from December 10 at 6:00 a.m. through December 15 at 6:00 a.m. to protest Kaiser’s refusal to bargain in good faith toward a fair contract. To date, Kaiser has refused to ensure that our hospitals and clinics are staffed adequately to provide safe and timely access to mental health services. At a time when Kaiser is making record profits ($9.8 billion since the beginning of 2016) and Kaiser’s execs are pocketing record payouts ($16 million to CEO Bernard Tyson in 2017), Kaiser is refusing to hire enough mental health therapists so that patients with depression, bipolar disorder and other conditions don’t have to wait one and two months between appointments.
Which unions have issued sympathy strike notices?
Both the CNA and the Stationary Engineers Local 39 filed formal notices alerting Kaiser of their members’ right to strike in sympathy with NUHW members.
Do Kaiser employees represented by SEIU-UHW and other unions also have a legal right to honor NUHW’s picket lines?
YES. Employees represented by SEIU-UHW who honor picket lines will be engaged in a “sympathy strike” with NUHW-represented employees. Employees represented by either the CNA or the Stationary Engineers who honor the picket lines will also be engaged in a sympathy strike.
In Children’s Hospital of Oakland v. California Nurses Association, 283 F.3d 1188 (9th Cir. 2002), the federal appellate court for the Ninth Circuit (which includes California) explained that the right to engage in a sympathy strike—that is, the right to strike for the purpose of supporting the cause of workers represented by a different union—is a right protected under Section 7 of the National Labor Relations Act, 29 USC §157.
While a union can waive that right to engage in sympathy strike in a collective bargaining agreement, the court stated in Children’s Hospital that the waiver must be “clear and unmistakable,” so that the bargaining unit members are on notice of the waiver. In the Children’s Hospital case, the court also ruled that a general no-strike clause—that is, a clause that does not say anything specific about “sympathy strikes”—does not prohibit sympathy strikes, unless it can be proven that the parties intended to prohibit sympathy strikes. Because the no-strike language in the collective bargaining agreement between Kaiser Permanente (Northern and Southern California) and SEIU-UHW does not mention sympathy strikes, and because bargaining history and past practice do not indicate a clear intent to prohibit such strikes, it is very unlikely that Kaiser could prove that it and SEIU-UHW ever agreed to prohibit sympathy strikes.
Do I have the same legal right to honor the picket line if SEIU-UHW fails to give a ten-day advance notice?
YES. Section 8(g) of the National Labor Relations Act requires that a labor organization representing employ-ees at a health care institution provide the employer and the Federal Mediation and Conciliation Service with notice, at least ten days in advance, before engaging in any strike, picketing or other concerted refusal to work at any health care institution. 29 USC §158(g). The National Labor Relations Board and the federal courts, includ-ing the Ninth Circuit, have uniformly interpreted this provision to apply only to labor organizations, and not to individual employees. See, e.g., NLRB v. Long Beach Youth Center, Inc., 591 F.2d 1276, 1278 (9th Cir. 1979). Consequently, individual employees are not themselves required to give the ten-day notice, and they also do not lose the Act’s protection if their union fails to give the ten-day notice and they are acting without their union’s approval. See East Chicago Rehabilitation Center, Inc., 259 NLRB 996, 999 (1982), enforced 710 F.2d 397, 401-402 (7th Cir. 1983).
Is it lawful for me to join the picket line and picket with NUHW?
YES. There is no restriction on joining the picket line, and the National Labor Relations Board (“NLRB”) does not generally treat sympathy strikes and sympathy picketing any differently. See Montefiore Hospital and Medical Center, 243 NLRB 681 (1979), enforced in relevant part, 621 F.2d 510 (2d Cir. 1980). While joining a picket line might be restricted by a collective bargaining agreement, the collective bargaining agreement between Kaiser Permanente (Northern and Southern California) and SEIU-UHW does not appear to prohibit or restrict picketing by sympathy strikers.
If I am working when the picket line goes up, can I leave my job to join the picket line?
YES. The National Labor Relations Board has found sympathy walkouts protected even where doctors in a hospital involved in direct patient care walked out in sympathy with strikers who had set up a picket line, in Montefiore Hospital and Medical Center, 243 NLRB 681 (1979), enforced in relevant part, 621 F.2d 510 (2d Cir. 1980). To protect yourself, however, we advise that you give your supervisor advance notice of the fact that you are leaving and the reason you are leaving.
If I am on an approved vacation, or on leave of absence, can I join the picket line?
YES. There does not appear to be any legal restriction on engaging in sympathy strike conduct while on vaca-tion or leave of absence.
If I am at a site where there is no picket line, but workers at that location are in fact on strike, can I go out in sympathy with those workers?
YES. The refusal to work during a strike is protected even when it does not involve picket line activity. M/G Transport Services, 204 NLRB 324, 325 (1973) (“picketing and honoring a specific picket line are only two of the many forms of activity protected by Sections 7 and 13 of the Act”).