The latest skirmish in the battle between NUHW and SEIU-UHW was decided by the NLRB in Kaiser Foundation Hospitals, 356 NLRB No. 106 (March 2011), and the result is that the employer must abide by the terms of the contract, including wage increases, agreed to between the employer and a defeated incumbent union.  In a January 2010 representation election, employees in three units in Kaiser’s Southern California region overwhelmingly chose to join NUHW rather than remain represented by SEIU-UHW.  Following the NLRB’s certification, NUHW requested that Kaiser honor the terms of its former collective bargaining agreement with SEIU-UHW while the parties negotiated a new agreement.  Kaiser refused to honor the contract provisions providing for wage increases, tuition reimbursement and paid time off for union stewards to attend training, prompting NUHW to file an unfair labor practice charge.

Kaiser argued that, under the Board’s RCA Del Caribe precedent, the SEIU-UHW contracts were “null and void” following the election.  In his December 2010 decision, the ALJ rejected Kaiser’s broad interpretation and ruled that the phrase “null and void” cannot be read literally to mean that an employer may treat the terms and conditions of employment established under an agreement with a defeated incumbent union as if they never existed. Instead, that term means that a successful intervening union must be afforded an opportunity to negotiate a new contract, rather than be saddled with the one executed by the defeated incumbent.  Accordingly, employers must abide by the then existing terms and conditions of employment until an agreement is reached with the new union or a lawful impasse occurs.  In the absence of exceptions, on March 3, 2011, a Board panel (Chairman Liebman, and Members Pearce and Hayes) adopted the ALJ’s decision.

The implications of this decision may extend beyond the initial Southern California election. While the charge was pending, NUHW and SEIU-UHW continued their bitter campaign to represent a much larger group of 45,000 Kaiser employees.  As previously reported in this blog, one of the campaign’s main points of contention was whether the wage increase in that Kaiser/SEUI-UHW contract would remain in place if voters selected NUHW.  NUHW maintained that it would.  SEIU-UHW claimed employees would not receive the increase, citing Kaiser’s refusal to grant wage increases to the units in the Southern California region.  On October 7, 2010, the NLRB announced that SEIU-UHW prevailed with 61% of the vote.  NUHW filed objections, which are currently pending.

The impact of the Board’s decision on NUHW’s pending election objections remains to be seen; however, it is clear that we have not heard the last of this issue.

This article was written by Carie Torrence.