Ways to protect yourself against possible enactment of Employee Free Choice Act

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Matthew Goodfellow
Matthew Goodfellow

[Editors' Note: Last week, Senate Majority Leader Harry Reid (D-NV) said that the Senate was unlikely to act on Employee Free Choice legislation. This column was submitted before that disclosure. Although card-check legislation may not be on the table right now, the author raises interesting points about it and other aspects of union organizing efforts.]    

A recent survey by the University Research Center of administrators of 53 long-term care administrators found that only a handful of them are aware of how badly the proposed "Employee Free Choice Act" hurts their ability to remain union-free. 

Here are the major provisions of the pending "card check" legislation before Congress:

* If a union "signs up" a majority of a facility's workers—just 50% plus one—the union will be immediately certified by the National Labor Relations Board with no secret ballot election. This ends administrators' chances of presenting their case against unionization to employees in a campaign.

* If first contract bargaining is not quickly successful, a government arbitrator will dictate terms of a binding, two-year collective bargaining agreement.

What are the consequences of card checks? Check the statistics! Many states either allow "card check" unionization, or severely restrict state or local government units from campaigning against a union. As a result, 36.8% of government workers in America are unionized, says the Bureau of Labor Statistics, compared to just 7.6% of all employees in other segments of the economy—manufacturing and health care, as well as wholesaling and retailing establishments.

Recommended actions for U.S. employers

Q: What should I do to protect my home from this threat?

A: Employers must undercover the true sentiments of their workers about their healthcare facility and its administrators, and correct any problems that rile them, because they are the ones who will be signing the union cards. The best way to ascertain employees' true opinions are to retain an outside, experienced third party to make an impartial survey of employee concerns and beliefs. There are relatively few effective consultants. Upon request, the University Research Center can provide recommendations about those who understand employee relations in facilities offering long-term care at the different levels of patient needs.

Q: Who will the unions target first? What facilities are most at risk?

A: In recent years, nearly 70% of all union elections occur in facilities with fewer than 50 employees, says the NLRB.  Smaller facilities offering residential care and those with large numbers of Hispanic employees are at the most risk.

Q: Why Hispanics?

A: Because most executives are oblivious to Hispanic cultural cues and often inadvertently abuse them. Anti-administration feelings caused by perceived abuse produce more union sentiment than anything else. Also, many Hispanics are unfamiliar with U.S. labor law. Their knowledge of unions comes from their native lands, where the laws are far different.

Q: What does this have to do with unions and signing union cards?

A: Organizers know of these cultural resentments and exploit them. Unions are increasingly aiming at healthcare facilities with high percentages of minorities, especially Hispanics. Few nursing homes have administrators who speak Spanish; even fewer are aware of Latino cultural traditions and unknowingly offend them.

Q: Some of my first-level supervisors and charge nurses are Hispanic. That eliminates that problem!

A: Not so! Because of their culture, Hispanic supervisors generally tend to be authoritarian and culturally are less aware of the Anglo tradition of treating employees impartially. Abuse of authority is the problem! While Hispanics in general accept authority more readily then other nationalities, they are more sensitive to the abuse of authority. Abuse of authority is anything that smacks of supervisory "favoritism." That's pure poison anywhere in the facility—laundry, food service, or direct patient care. Because supervisors are management, this makes Hispanics more eager to sign union cards because they are told a contract will "eliminate" unfairness.

Q: What's so difficult about treating Hispanics "fairly?"

A: This is hard because language and misunderstood cultural barriers create greater opportunities for misinterpretations of actions or decisions. Since Hispanics traditionally are reluctant to complain to a busy administrator, they tend to seek outside "protection" against "abuses" through a union contract.

Q: Why are smaller healthcare facilities so vulnerable?

A: Many smaller ones believe their size promotes a "family feeling." Not so. Many lack impartial absenteeism policies, rules of conduct that apply to all, or effective problem-solving (grievance) procedures. Grievances are bottled up even with an open door policy.

Differences between the "card check" law and current law

Q: How would this new law differ from current labor laws?

A: Administrators now can insist on a secret-ballot election held after a union files a petition with the NLRB, along with union cards signed by at least 30 percent of their workers. Now, employers and unions both use "Free Speech" rights to campaign for employee votes in secret ballot elections strictly supervised by the NLRB. Unions dislike campaigns; they know many healthcare workers signing cards do not vote for a union after they hear all the facts.

Q: What are the rules of those campaigns?

A: Complex but fair. They have been developed by the NLRB in a successful effort to balance the rights of all parties-unions, employers, and employees. 

Q: When, where and how do unions get such signed cards?

A: Unions depend upon peer pressure from "pushers" who solicit fellow-workers in break rooms at work, in local coffee houses after hours, and often in  "card signing parties" where "pushers" forge union cards. When button-holing workers, pushers avoid saying unions cannot guarantee increased wages, do not mention high union dues, nor talk about questionable union finances or sticky-fingered union officials juggling union funds. 

Q: Who wins elections now?

A: In the first half of fiscal 2008, the NLRB reported unions won nearly 65% of all elections that were held.

Q: If unions now win a majority of elections, and if there are decades of legal precedent supporting secret ballot elections, why are politicians pushing a new law?

A: Last year, Democratic candidates received more than $450 million from unions and their political action funds. Unions now want a return on their investment, and have received a down payment. The new administration has already issued four executive orders favoring unions, appointed Wilma Liebman (previous legal counsel for the Teamsters Union) as chair of the NLRB, and named Hilda Solis, a supporter of the EFCA, as secretary of Labor.

Q: Will this new legislation easing union organizing efforts pass?

A: Something like it is in the cards. Why? Ignore the fact that unions now win a majority of elections. Ignore the decades of legal precedent saying secret ballot elections are the best way to determine employee sentiment. Focus on the public's current mindset.

Q: What mindset?

A. Look at Wall Street bankers paid hundreds of millions to lose billions! Look at the public rage over the government's bail-out plans for them! At the same time, look at the hundreds of long-term care facilities having financial problems due to stingy—or late—government reimbursements!  That's wrong! But unions say they can "fix it!"  People listen to union propaganda, and politicians listen to people, especially their contributors.  

Q. What does this mean for long-term care facilities?

A. According to the Bureau of Labor Statistics, Hispanic workers are the fastest growing employee segment in long-term care. By next year, BLS estimates Hispanics will make up nearly 30% of all employees in extended care. In many areas of the country, most long-term care workers are Hispanic.

Employer protections

Q: How do I insure myself against unionization?

A: Just as you insure yourself against the risks of fires-invest in insurance!

Q: How do I ensure that my employees feel they are being treated "fairly?" And what do I do about it if they don't feel they are?

A: A key part of insuring against employee perceptions of unfairness—and the Employee Free Choice Act—is to ascertain impartially current employee sentiments. 

Q: Sounds reasonable. But how do I find out how my employees really think?

A: Employees—Hispanic or not—will talk about their concerns in safe surroundings, and will talk more openly to an outsider than to any member of a home's administration. Open door policies allowing workers to speak up in just don't work because employees fear complaining to busy administrators about arbitrary supervisors or charge nurses. Moreover, it takes an outsider with nursing home experience to listen with a "third ear," to understand workers. They often say one thing but mean something else by what they say.

Q: What about the attitude survey my lawyer recommends?

A: Few employees think in legal syllogisms like lawyers. Employees' beliefs are often expressed in odd ways that only a skilled interviewer can interpret accurately.  Attitude surveys just don't uncover these sentiments, especially if buried by cultural traditions. The best way to uncover workers' thinking is through an outside, experienced third party, temporarily used to uncover workers' real concerns and beliefs and to recommend immediate remedies. 

Q: So who are these third parties and where do I find them?

A: There are just a handful of truly effective consultants. Some specialize in certain industries—others in particular geographic areas. Any long-term care executive concerned about the Employee Free Choice Act, its impact on his facility, or wanting a recommendation for an effective consultant who knows extended care, should contact University Research Center at UNIVRESCTR@AOL.COM for recommendations.

Q: What about a follow-up to discourage employees from signing cards later?

A: Some consultants also design on-going, bilingual programs for healthcare facilities to alert employees to the dangers of union cards, and to "vaccinate" them against the union virus. They key these programs to actual employee concerns unearthed in the survey, not just generic exercises of legalistic persuasion.

Q: What is the University Research Center?

A: The URC is a 48-year old private, nonprofit research organization engaged in economic research. Its mission is to research issues about productivity, organizational dysfunction, and the reasons for unionization in non-union facilities and strikes in organized ones. The URC is supported by more than 5,000 members from all segments of American industries, and publishes all its results in the interest of American economic well-being.

Employers wishing further information on recommendations for effective consultants or the Employee Free Choice Act or should contact Matthew Goodfellow, Ph.D., executive director, University Research Center, at UNIVRESCTR@AOL.COM or at P.O. BOX 5147, EVANSTON, IL, 60204-5147.

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