The Employee Free Choice Act: What nursing homes can do to keep unions at the door

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Michael Pepperman
Michael Pepperman
On March 10, 2009, the Employee Free Choice Act ("EFCA") was introduced into the House of Representatives and U.S. Senate. EFCA is designed to increase the success rate of union organizing efforts by eliminating secret ballot elections. Instead of secret ballot elections, union organizers would only have to get a simple majority of a designated group of employees to sign cards (also known as "card checks") for a union to be recognized as representing that group of employees.

It will be quite easy for organizers to pressure workers into signing cards. Any number of coercive, high-pressure tactics could be used to get nursing home workers to sign cards, and it would all be done without management's counter arguments.

In addition, EFCA provides for huge fines (up to $20,000 per violation) for any employer who violates the National Labor Relations Act during an organizing drive or during negotiations for a first contract. EFCA also mandates binding arbitration for those items that management and the union cannot agree upon in negotiating that first contract.

EFCA has been and will be debated on television and radio talk shows, and will be the subject of countless editorials and op-ed pieces in newspapers and magazines throughout the country. Much of the opinion will come down either in favor of secret ballot elections or in favor of card checks.

Notwithstanding this debate, the dispute over the traditional secret ballot election versus card check will likely be the subject of a congressional compromise. For example, Pennsylvania Senator Arlen Specter (thought by many to be a key swing vote in the Senate on EFCA) recently indicated he does not support card checks or mandatory arbitration under the current version of EFCA, although he supports shortening the election period.

This compromise on the card check issue could take the form a "quickie" election that would take place from 14 to 21 days after a union files a petition with the National Labor Relations Board (the "NLRB") seeking an election. Currently, the NLRB attempts to schedule elections within 42 days after a petition is filed and in those elections, unions have a win rate of approximately 60%! The union win rate likely will soar to the 80%-90% range if the election period is significantly shortened.

Unfortunately, one or both of EFCA's two other major provisions (huge fines and mandatory arbitration) may very well survive all congressional wrangling. Therefore, if the only significant compromise on EFCA is the substitution of secret ballot elections with a quickie election process, EFCA will still provide unions with an unprecedented "boost" in organizing American workers at a very rapid rate. A quickie election process, coupled with huge fines for unfair labor practices committed during organizing drives, will have nearly the same effect as card checks; making it much easier for unions to organize.

Passage likely 


Could the number of unionized American workers double in three to five years?

With various compromises among legislators, EFCA (or more likely a modified version of it) may very well be signed into law in the coming months. In fact, President Obama recently told a group of top American labor leaders: "We will pass the Employee Free Choice Act." Therefore, it is essential for nursing homes to develop an effective strategic action plan to diminish the increased chances for unionization.

To combat the deleterious effects of the EFCA (which, by the way, will be the most anti-management law enacted since the passage of the National Labor Relations Act in 1935), the following tools should be utilized to ensure that employees do not seek redress for their employment issues elsewhere.

1. Adopt a "pro-active" employee relations philosophy.

The days of being "reactive" are over. Ongoing communications to employees and performance enhancing/team-building programs are essential. If an employee is performing poorly, the company should not wait until the termination meeting to tell that employee about a record of poor performance. Performance goals must be stated clearly and reinforced as often as necessary. Not only is it important for management to state its goals, but employees also are eager to learn about those goals and expectations, for they have invested their time and ambitions in the workplace and in the culture of the company for which they work. It is important to remember that the three most important words for successful employee relations are: "Communication, communication, communication."

2. Conduct union authorization card training for employees.

This should be done even before signs appear of a union organizing drive. In fact, it should be undertaken as part of the new employee orientation program. Explain to employees how union organizers may ask or even pressure them into signing authorization cards and what they can do to respond to those attempts. Employees should be informed that they do not need to pay union dues, ranging from $25 to $40 a month, to get what their company already provides: competitive wages, good benefits, fair treatment, and real job security.

3. Inform employees that they can ask a union organizer for a copy of the union's annual financial report (LM-2 Forms) and its by-laws.

Employees should be told how union dues are spent and for what purposes. They should request the appropriate forms that will reveal how much money the union officers and organizers are paid. Their high salaries may discourage workers from wanting to contribute a portion of their own hard-earned salaries to union representatives. The forms will demonstrate that unions operate, as do any other businesses, paying higher salaries to its officers as the union's membership rolls increase.

However, while a business earns revenue as a result of the productivity of its workers, union employees and officials are paid from the dues they can collect. Often, a union is only as economically successful as the amount of dues it collects from its members. If a union does not provide the requested documents, employees should question the union's motives.

4. Present employees with a list of essential questions to ask when confronted by union organizers.

For example, an employee should ask the union organizer the following questions:

* Will the union guarantee in writing that it will be get employees a raise of "X" dollars and better benefits or be liable to employees if it doesn't?

* How much are union dues?

* What portion of union dues goes to paying union salaries?

* How much are special union assessments and how often will they be imposed?

* Is it true that employees can be put on trial and fined if they violate the union constitution and/or by-laws?

* Will the union guarantee in writing that employees will not be permanently replaced during an economic strike?

* Will the union pay wages to employees if they are called on strike?

5. Help employees understand the value of their own company's compensation and benefits plans and philosophy.

Companies that fail to sell the value of their wage-and-benefit plans will invite feelings of employee dissatisfaction. Quite often, employees do not understand their own pay package because it is so complex and complicated. A simple explanation may be all it takes to enlighten an employee of the value of a company's benefits plan. Employee understanding of the plan is often followed by acceptance. The company's compensation and benefit plan should be positively contrasted with union "promises," which are, in fact, just promises.

6. Develop and refine an employee selection process.

For example, always do background checks, contact previous employers about each applicant, tailor the interview/selection process to the position being hired, etc. It is during this process that the interviewer can determine an employee's attitude toward management.

7. Gauge employee attitudes through surveys and feedback sessions so that unions cannot take advantage of employee discontent.


Employee surveys should become a "pattern and practice" at the company and should be done on an annual basis. Employee surveys will let management know how employees feel about a host of important factors, such as pay, benefits, supervisors, general work environment issues, fair treatment (or lack thereof), appreciation levels, and even whether the bathrooms are clean.

8. Create a communications strategy for reinforcing the value of maintaining a union-free workplace.

It is important to consistently explain to employees and supervisors the value of working in an environment free of interference from third parties. This means that employers have to "walk the walk" and honor the commitment to treat employees with the dignity and respect they deserve. For example, a company newsletter can be used to honor certain individual accomplishments or those of employee teams. Other communication devices, such as company Web sites, can be used to enhance employee identity with the company, which might alleviate the desires of certain employees to place a value on unionization.

9. Craft a position statement on unionization indicating the company's position about the subject.

If the company does not state its position about unions, employees may feel that the company doesn't care if it becomes unionized. It is permissible to publicize a position statement on unions in an employee handbook and/or during employee orientations. Of course, the company's statement regarding its position cannot be intimidating or threatening or it could be deemed unlawful.

10. Create a policy modification (employee handbook) in response to employee survey input, which includes informal and formal dispute resolution procedures and "positive" discipline.

Employees want to know that their input on the survey actually means something and that the company is responsive to their opinions. In addition, a formal grievance procedure should be utilized, which includes a two- to three-step process (e.g., an initial complaint to a supervisor followed by subsequent steps to a plant manager, and then to the company president). The final step could include binding arbitration if the dispute cannot be resolved to the employee's satisfaction at an earlier stage.

11. Create and implement a strategic program to build employee recognition and identification with management.

This can be as simple as company jackets, T-shirts, hats, jackets or even a company softball or bowling team. Camaraderie and high morale are extremely important in any workplace and will serve to obviate employee desires to have their expectations met by a union. In addition, employee "work-teams" that good-naturedly compete with each other at the workplace to achieve selling or production goals can be highly effective in creating a loyal team/company identity.

12. Implement an effective HR management and union authorization card training program for all front-line supervisors.


In the minds of employees, front-line supervisors "are" the company. If those supervisors are respected, and their roles are appreciated by employees, then the company will be similarly respected and appreciated. It is, therefore, essential, that all supervisory personnel have the necessary training and skills to inspire those whom they supervise. Such supervisors will be the company's front-line of defense in combating any union organizing effort.

If nursing homes adopt the steps that I have outlined above, they will not only significantly reduce the likelihood of unionization under the Employee Free Choice Act, but it will also increase worker productivity, morale and, ultimately, profits! A non-adversarial, cooperative relationship between management and workers is the key to an ever-rising bottom line.

Michael Pepperman, Esq., is a partner in the Philadelphia-based regional law firm of Obermayer Rebmann Maxwell & Hippel. As a member of the firm's Labor Relations and Employment Law Department, he exclusively represents management in all facets of labor relations. Highly regarded as an expert on the Employee Free Choice Act, he can be reached at Michael.pepperman@obermayer.com.



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