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Keeping the unions at bay: with unions more active in long-term care than ever, how can you keep your facility union-free? (Feature Article).

One need only look at the role unions played in the 2000 elections to appreciate organized labor's growing influence. More to the point, long-term care is experiencing an unprecedented upsurge in union organizing activity and union militancy. Private sector unionization had been on the decline for more than 30 years and, at the beginning of 1999, only 10% of the private sector workforce was unionized. Unions definitely reversed that trend in 1999. The Service Employees International Union (SEIU) grew by more than 150,000 new members in 1999 and by only a slightly lower number in 2000.

Although unionization in general did not grow in 2000 and, in fact, lost some ground as a percentage of the total workforce, healthcare was labor's one "shining exception." In terms of growing union militancy, one need only look at the events in Connecticut last year. As of May 3, 2001, 4,300 employees at 23 nursing homes were participating in a far-reaching strike.

More alarming is the rate at which unions are now winning National Labor Relations Board (NLRB)-sanctioned elections in healthcare. Less than five years ago, unions prevailed in only about half of NLRB elections at healthcare facilities. In long-term care in 1999, that grew to a 68% win rate. This is even more significant when you consider that the number of NLRB "nursing home" elections each year has grown to 234 in less than 10 years.

The reversal began when John Sweeney, formerly president of SEIU, was elected president of the AFL-CIO in the late '90s. He was elected on a platform committed to making organizing his number one priority. In 1995, the AFL-CIO budgeted $2.5 million for organizing. By 1999, that grew to $30 million, and Sweeney had committed to spending one-third of the AFL-CIO budget for organizing last year. One of Sweeney's first acts was to give a blank check to the Organizing Institute, the branch of the AFL-CIO created in 1989 to train organizers. In 1990, the Organizing Institute spent less than $400,000 to recruit and train 25 organizers; by 1997, it was spending as much as $4 million a year and had produced some 320 highly trained organizers--and its budget keeps growing.

Long-term care employees are more susceptible than ever to union initiatives, for several reasons. Long-term care is under stress because of increased regulation and tighter reimbursement. Real pay in take-home dollars has actually decreased. Mergers, restructuring and reorganization are driving employees to unions. Employees are frustrated and, indeed, angry over the changes that are occurring in the healthcare workplace. Resident acuity has increased while staffing has remained the same or, in some cases, decreased. In a number of classifications, there is a shortage of qualified applicants and, like it or not, many employers have been forced to lower their standards to maintain adequate staffing. From the employees' perspective, management is turning a deaf ear to them, and the outcry in most organizing drives that resonates loud and clear is that the employees "want a voice." Employees believe that most personnel actions are done to them, not with them.

To top it off, the unions are using much more sophisticated tactics. According to Sweeney, "The labor movement cannot organize enough members to restore the balance of power with employers if we use the strategies and tactics we've used over the last 20 years.... We need to learn how to organize without the protection of the labor laws.... We need to be doing something different, or [the movement] will not succeed in reversing its membership [if the NLRB election process] is the primary means of organizing.... Union success in organizing new members ultimately rests in extending beyond time-worn organizing tactics and into political action and community relations.... Labor needs to increase political action to change the rules of the game" (emphasis added).

Home visits have become a cornerstone of most union campaigns in healthcare; leafleting in parking lots and sloganeering have become passe. Not only are the unions out in the neighborhoods knocking on doors, they are campaigning through employees' VCRs. Many union campaigns now feature a professionally produced, high-quality video that is sent to eligible employees shortly before the election date. The use of "salts"--persons on the union's payroll who present themselves as applicants to organize from within--is becoming more common. Expect unions not to respect your property rights and to attempt to access your employees in your facility while at work. Many unions also now offer "products" above and beyond their representation. Union benefit plans, whereby employees are provided benefits such as legal insurance and the like, are being offered to many employees as an extra if they sign up with the union.

The unions are enlisting local, state and federal politicians in their efforts and are making hefty contributions of cash and manpower to their election and re-election campaigns. Expect the union to approach federal, state and local government agencies to challenge your compliance with regulations, licensure and accreditation. They, for example, seek to discredit employers through Occupational Safety and Health Administration (OSHA) complaints and through other filings with the Department of Labor challenging pay and compensation practices. Unions are skilled at enlisting support from the clergy and at infiltrating ethnic and social clubs that employees frequent. Some unions will attempt to gain leverage with any of your referral sources that might be vulnerable to union threats and boycotts--and don't be surprised if they attempt to exercise influence at your financial institutions and lenders where they might have a relationship. In multifacility organizations, unions now commonly seek neutrality agreement s attempting to tie an employer's hands in future organizing drives at other facilities.

Unions have engaged skilled public relations professionals to assist with the media, and they have moved into cyberspace. Virtually every union has a Web page, and they're not beyond using your e-mail and other modern means of communication to gain access to your employees. Don't be surprised if a union, in organizing and in labor disputes, attempts to access your computer system to gain information and records and, possibly, see members even attempt to sabotage your system.

Act Now

You can no longer afford to stand idly by and wait for the union to show up on your doorstep before taking affirmative steps. If the first you hear of union organizing activity is when, or shortly before, you receive the petition from the NLRB, it's simply going to be too late in many cases to turn the tide.

The good news is that there are many steps you can take to make your facility and your workforce less susceptible to union organizing.

An important first step is to have an appropriate outside professional conduct an audit of your vulnerability--your areas of weakness in terms of union organizing. The audit should include a thorough review of pay, benefits and personnel practices, and should look at how you stack up in these against other comparable employers. The audit should also examine areas such as supervisory training, supervisory management skill, and other strengths and weaknesses of you organization that could be exposed during a union campaign.

An employee attitude survey should be given serious consideration. If you do one, do it right, and be prepared to follow up with concrete action. The mere conducting of a survey will create expectations among your workforce. If you ask them to tell you what's wrong, they'll expect you to fix it.

Every successful counter-unionizing effort has effective communication at its core. If the communication vehicles are not already in place when a union organizing campaign begins, much of what you do and say will be dismissed as patronizing antiunion propaganda.

You should regularly promote what you have done in terms of employee relations, benefits and other positive attributes of your employment relationship. Many employees simply don't appreciate what they already receive without having to pay dues to a union.

In difficult or trying times, or times of change--like now, for example--it is critical that you keep focused on your employees. Executives cannot allow themselves to focus on external issues at the expense of employee relations. Employees fear change, and that means that any organizational change can be a breeding ground for employee insecurity and discontent.

Employers need to take precautions against hiring "bad apples." It is more important than ever that employers carefully scrutinize all job applicants before placing them on the payroll.

When new hires are being oriented to their jobs, part of your program should be to communicate your position on unions and your desire to work directly with employees and thus remain union-free. Talk freely about the advantages of your union-free environment.

Careful attention must be given to the performance of new hires during the trial period. New employees should be supervised closely and be evaluated often, not just at the end of the probationary period. If a new hire projects as a problematic or marginal employee, to put it simply, the sooner he is let go, the better.

You need to identify employee leaders in your workforce and bring them into the decision-making process. If you don't, the union will. Unions have become very astute at winning over respected employees to their cause and no longer rely on the disgruntled employees to staff their in-house organizing committees.

You should empower your employees to the greatest extent possible. If you don't, the union's offering of a "voice" will resonate loud and clear to employees who feel they are on the outside looking in. Case in point: The AFL-CIO is investing a great deal of money in its new "Voice at Work" campaign after having had such success with its "Union Yes" program.

Make an example of your employees who perform well. Employees who are not represented by a union should stack up well, on a comparative basis, against employees in your workforce or at other facilities who are in a union environment. An internal employee recognition program will serve quite well.

Remember Your Supervisors

It is important that you empower your supervisors before you are faced with a union organizing drive. Disputes over supervisory status can place a significant cloud over proceedings at the NLRB and tie your hands in your ability to respond to the union campaign. Frankly, frontline supervisors are the key to every counter-unionization effort. Job descriptions should clearly identify supervisors as such. You should practice inclusion of supervisors in the management circle to the greatest extent possible, and it is extremely important that you maintain records of all aspects of an individual supervisor's involvement in any aspect of personnel relations and supervision of employees. Otherwise, you can find yourself in a he-said/she-said fight at the labor board if supervisory status comes into dispute. Suffice it to say, a look at the NLRB's track record on the charge nurse supervisory issue shows that the NLRB will not be your ally in any such dispute.

Starting immediately, supervisors must understand the impact of unionization on a manager, appreciate the distracting effect of union organizing campaigns and buy into their role in countering the union's efforts. Supervisors should be well attuned to the warning signs of union activity, NLRB processes, and the do's and don'ts of interacting with employees from the very earliest stages of the union organizing efforts.

The National Labor Relations Act guarantees employers freedom of speech, within limits, and supervisors must be trained in exercising that right through effective communication with employees. They must appreciate the importance of listening and of interaction skills with employees (particularly disgruntled employees). Supervisors must understand the importance of implementing negative personnel actions, such as termination, with fairness, dignity and class. Unions are astute at taking advantage of weak supervisors and at selling the "need" for representation to employees who are at odds with their supervisors, even if they can't attract the employees for any other reason.

Guard Your Resources

Now is the time to take steps to protect information that would be of value to a union in an organizing drive. Far too much employee information for comfort is easily accessible to union supporters and the union, particularly in a highly computerized workplace. On a typical resident unit, a union supporter can easily gather names, classifications, work schedules, phone numbers and, in some cases, even addresses. One of the first steps a union takes in an organizing drive, before it "goes public," is to gather such information. Keeping this information out of union organizers' hands makes their task much more difficult, particularly if they rely on home visits as a cornerstone of their campaign.

If you don't already have one, you absolutely should adopt and implement a legally defensible policy governing use of e-mail for personal and solicitation purposes. You should also have in place policies and practices dealing with access to your facility by off-duty employees, former employees and others. It is important that these policies be policed, lest you face a claim of discriminatory enforcement in the context of union organizing activity.

You should take advantage of cyberspace yourself and learn as much as you can about unions targeting, or potentially targeting, your facility. As noted above, virtually every union now has a Web site, and they are using those Web sites to recruit members, supporters and potential inside organizers.

It is important that you use outside professional resources throughout this process. Experienced labor lawyers and consultants offer considerable added value. While most employers can usually count on less than one hand the number of organizing drives they have experienced, outside professionals have the benefit of having been involved, in some cases, in literally hundreds of organizing efforts with multiple unions and employers.

If you haven't already done so, you should regularly survey competitors' facilities, particularly those that already have a union. You should then use this information to ensure that you will not compare poorly, should a union come courting your employees. In fact, you should make every effort to position yourself so that the union has little, if anything, new or better to offer your employees. This is even more important if you are a multifacility organization and one of your facilities is unionized. Employees are highly receptive to union campaigns in which the union can, based upon contracts in place elsewhere, offer the employees more than they are presently receiving from their nonunion employer.

Finally, don't be afraid to respond aggressively, and even to sue, when unions overstep their bounds. A swift legal response when a union trespasses at your facility and invades privacy or proprietary interests can place the union on the defensive in appropriate circumstances.

It is important that you act now to make yourself a less attractive target by minimizing your vulnerability to organized labor's new and sophisticated tactics. The unions aren't coming--they're here.

RELATED ARTICLE: Information About Union Activities

AFL-CIO -- www.aflcio.org

National Labor Relations Board (NLRB) -- www.nlrb.gov

Service Employees International Union (SEIU) -- www.seiu.org

John E. Lyncheski, Esq., chairs the Healthcare Practice Group and is senior director in the Labor & Employment Group at Cohen & Grigsby, PC, a full-service national law firm with offices in Pittsburgh, Pa., and Bonita Springs, Fla. For further information, send e-mail to lyncheski@cohenlaw.com or phone (412) 297-4900 or (941) 390-1900.
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Author:Lyncheski, John E.
Publication:Nursing Homes
Geographic Code:1USA
Date:May 1, 2002
Words:2541
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