Union Files Lawsuit Exploiting ObamaCare in California for Organizing Purposes

Union Files Lawsuit Exploiting ObamaCare in California for Organizing Purposes

Add ObamaCare to the list of laws that California unions are exploiting for “corporate campaign” strategies to coerce labor agreements or exert pressure during labor disputes.

On September 4, 2013, the National Union of Healthcare Workers sued the California Health Benefit Exchange to boot Kaiser Permanente from the list of 12 health plans approved for participation in the exchange. Unions are abusing the California Patient Protection and Affordable Care Act, which implements the federal Patient Protection and Affordable Care Act (ObamaCare) in California and sets standards for health plans to qualify for participation in the program.

A copy of the lawsuit – National Union of Healthcare Workers v. California Health Benefit Exchange – is available on the National Union of Healthcare Workers web site. Here are excerpts from the September 9, 2013 announcement from the National Union of Healthcare Workers claiming their motivation for the lawsuit:

NUHW Sues California’s Healthcare Exchange to Protect Patients

Earlier this year, Kaiser Permanente was cited for numerous serious deficiencies by the California Department of Managed Healthcare (DMHC) in areas critical to providing effective patient care in its mental health services, including its failure to ensure clinically appropriate care to Kaiser enrollees.  In June, the DMHC took the unprecedented step of fining Kaiser $4 million, the second highest fine in the agency’s history.

Despite notifying the Exchange twice in writing regarding Kaiser’s serious deficiencies, the Exchange never replied to our concerns, and, we believe, in violation of federal and state law and its own regulations, contracted with Kaiser as a plan to be offered when Obamacare is soon implemented.

Our goal is simple: before Kaiser is allowed to enroll thousands more patients through Obamacare, it should demonstrate to the DMHC that it can take care of the millions of Kaiser patients who are already paying Kaiser for their care…I want Kaiser to provide the highest quality care possible, rather than focusing on how to increase Kaiser profits at the expense of patient care.

Business publications were not fooled. In reporting the lawsuit, the San Francisco Business Times observed that the National Union of Healthcare Workers “last April lost a ‘do-over’ election to represent 45,000 workers at Kaiser Permanente.”  A September 5, 2013 article in the Sacramento Business Journal about the lawsuit (Union Seeks to Block Kaiser from Health Benefit Exchange) noted that the National Union of Healthcare Workers is in “contentious contract negotiations with Kaiser.” It quoted a Kaiser representative:

The union continues to make unfounded allegations as part of their protracted labor negotiations with Kaiser Permanente, and this behavior does nothing to further the negotiations that should be taking place at the bargaining table.

Adding to the evidence that the lawsuit was not really about standards of mental health services, The Hill newspaper in Washington, D.C. reported on September 9 (in the article “AFL-CIO Convention Avoids Healthcare Union’s Protests”) that “the bitter struggle” between the union and Kaiser manifested itself at the AFL-CIO annual convention:

In a Sept. 6 letter sent to AFL-CIO President Richard Trumka, obtained by The Hill, NUHW leaders said they were “alarmed to learn that the AFL-CIO will be featuring Kaiser Permanente and its trademarked ‘Instant Recess’ during the AFL-CIO’s upcoming convention in Los Angeles, in effect holding Kaiser up as a model employer.”

“Multiple affiliates of the AFL-CIO are currently in the middle of an epic struggle at Kaiser to defend standards that workers have fought decades to establish. We again request that you and the rest of the AFL-CIO stand with us and not with this multi-billion dollar HMO,” said NUHW officials in the letter…

“This is the same employer that has been fined by the state for $4 million for patient care violations. … They are also at the bargaining table with us trying to demand the elimination of defined benefit pension plans and health plans for retirees,” Borsos said. “Hardly the kind of employer that should be honored by labor.”

It shouldn’t be a surprise that a California union has recognized the state implementation of ObamaCare as a new law ripe for exploitation. It’s part of union organizing culture in the state. A prominent law firm for labor unions has produced multiple editions of a guidebook entitled Using The California Labor Laws Offensively: Organizing Through Enforcement Of State Employment Laws.

This guidebook only limits itself to the California Labor Code, which it describes as “a potent weapon of worker advocacy.” It acknowledges that union-backed “amendments to the Labor Code during 2000-2004 substantially increased the protections California law affords workers.” Those were the years when bills signed by Governor Gray Davis became law. Governor Jerry Brown has been signing and is expected to sign another series of union-backed “protections.”

Several articles in www.UnionWatch.org have reported how unions submit extensive objections or file lawsuits under the California Environmental Quality Act (CEQA). (See the list of those CEQA articles.) By intervening in the licensing process at the California Energy Commission, unions hold up large thermal power plants with massive data requests and other antics permitted under the Warren-Alquist Act. Sometimes unions supplement their environmental actions with other actions against proposed development by exploiting local zoning laws.

Also reported in www.UnionWatch.org was the participation of unions in a lawsuit based on the California Voting Rights Act of 2001 and the potential for more mischief using this law. See “Unions Will Control Mid-Sized Cities with California Voting Rights Act.”

Kevin Dayton is the President & CEO of Labor Issues Solutions, LLC, and is the author of frequent postings about generally unreported California state and local policy issues at www.laborissuessolutions.com. Follow him on Twitter at @DaytonPubPolicy.

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