How to avoid (or decertify) a union.

Nursing homes are a bigger target than ever (and it couldn't come at a worse time). What to do?

As you may have noticed, organized labor has taken a new interest in attempting to unionize nursing homes. What's more, the National Labor Relations Board has been certifying union elections in nursing homes at a rate unprecedented in recent years. This unwelcome news comes at a time when nursing homes face increasing regulation, decreasing public resources and growing competition for staff and residents. In short, it's another headache that nursing homes don't need at this point. What can be done to relieve it?

First of all, let's address why this is happening. Nursing home staffs have, of course, always been a fertile field for union organizing due to their typically low pay and demanding workloads. The advent of John Sweeney as President of the AFL-CIO stimulated new interest by the Service Employees International Union and the National Union of Hospital and Health Care Employees (1199) in organizing these and other health care workers. Sweeney, a former president of the SEIU, has had long experience in this arena. He put that experience to use this past summer by fielding hundreds of college-based volunteers to spread the union word among nursing homes and other employers throughout the country. He has also supported training of organizers to "infiltrate" facilities by having them seek employment as staffers and working from within.

This is one reason (though not the only one) that the NLRB has received and approved the largest number of organizing petitions from nursing home staffs since 1991. Further, under new NLRB guidelines, the time between the filing of an election petition and the actual election has been reduced radically, from months to weeks - an average of about 42 days, in fact. This is barely enough time for nursing home management to react and go through the early stages of panic before the election date hits. It's not a pretty picture for the unwary.

This is especially unfortunate, since there are several ways nursing homes can avoid this scenario before it ever becomes a threat. In fact, these methods can be applied by nursing homes that have already been organized, and help lead them toward the "promised land" of union decertification. It boils down to today's labor-management version of the three R's: Recognition, Repetition, Reinforcement.

Before explaining this, I'd like to lay out the context in which this is occurring. In the labor environment of the 1990s, the issues are not as focused as they once were on such tangibles as wages and benefits. Today it's more a matter of "Does the employer care?" Is the employer treating its employees with respect and dignity? Can you trust the employer? These concepts are very difficult to pin down but, believe me, today's trained organizer understands them thoroughly and knows how to put them to very effective use.

In short, trust - or lack of same - has become the major issue. Very simply, if management can retain employees' trust, it has reasonably little to fear from today's organizing activity. Once it begins to lose that trust, however, that is another story - and once trust is lost, it is very, very difficult to get it back. Rebuilding employee trust takes about a year in a nonunionized facility, and two-to-three years in a unionized facility, according to rules of thumb I have developed over the years. Patience is very much in order - but that patience will be rewarded.

The three R's, as I mentioned, are recognition, repetition and reinforcement. Let's start with recognition, which is the first step in any program designed to inspire employee trust. It is the cornerstone of what I call your labor relations action plan - a formalized plan similar to any financial or marketing plan you might routinely devise. Like these other plans, it covers a fixed period - say, one year. Recognition can begin with an employee survey every nine months or so on such issues as pay (in nonunionized facilities only; unionized ones have a problem which I'll explain later), staffing, performance improvement and other issues. These surveys genuinely seek employees' opinions and give them feedback within about one month.

Another component of recognition would be an awards program - "Employee of the Month" or "Best Suggestion," for example. The program would be overseen by a five- to seven-member committee with employees forming the majority. Winners are publicized, receive thanks and get a cash award large enough to be meaningful (but not so large as to be interpreted as a bribe).

This process should be conducted on a regular, routine basis - repetition. Employees will, over time, begin to at least understand why less-than-satisfactory situations - concerning pay or staffing, for example - exist. They may not like or even agree with the reasons, but they'll understand. Beyond this some genuine improvements may occur, with employees' responsibility for this being directly acknowledged - and that's reinforcement.

Consistent adherence to this approach will build and strengthen the employee trust that is the crucial issue in today's labor relations. It can, and often does, lead to their questioning the necessity for a union (and for paying union dues).

What about the facility that has a union in place, where trust has presumably been eradicated? What works then? I submit that the exact same approach works; it just takes longer.

There is also, for these facilities, a legal consideration that must be taken into account. On the basis of a relatively recent decision, E. I. Dupont DeNemours and Co., 311 NLRB 983 (1993) ("DuPont") [also see a related case, Electromation, Inc., 309 NLRB 990 (1992) ("Electromation")], the NLRB has ruled that it is illegal for a unionized employer to establish an employee committee to deal with issues pertaining to wages, hours or working conditions; these issues are considered by the NLRB to be mandatory subjects of collective bargaining.

This does not necessarily rule out the use of surveys or the committees that I have described, however. Issues that can still be addressed include such matters as employer/management communications, quality of care and productivity. Even on this more-restricted basis, the three R's can, and will, work.

There is also the psychological concern that unionized employers will be reluctant to reach out to employees in any way, whether for fear of upsetting the union or simply because they've given up and automatically refer employee concerns to the union. It only strengthens the union, of course, when employees see it as their only recourse. It is crucial that front-line supervisors be trained to be responsive to employee concerns. They must show that they are open to hearing employee concerns on all matters other than those defined as subjects of bargaining.

Recognition, repetition and reinforcement come into play again. Recognizing the need for concern, repeatedly addressing those concerns and reinforcing the positive results will re-establish trust and, again, increase questioning of the need for a union. And in the "real world," I can attest, nursing home union decertifications do occur.

The bottom line is that today's employer must be proactive with respect to employees' concerns. Ideally, that should always be the case. In today's labor-management environment, employers really have no choice.

Stephen J. Cabot is a senior partner with the firm of Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, PA. Long recognized as a prominent labor relations attorney, he is author of the best-selling book Everybody Wins! For more information, call 1-800-835-0353.