Labor pains: Craig Becker's troubling prescription for long-term care facilities

Administrators at nursing homes and other long-term care facilities are awakening to the fact that while unions lost their battle in Congress for the Employee Free Choice Act—the “card-check” unionization law—they won their war to make organizing easier, now that Craig Becker has been appointed to the National Labor Relations Board.

President Obama gave Becker an interim appointment to the NLRB in February 2010, after it became obvious the Senate would not approve him. During debates, one senator, Ben Nelson (D-NE), said, “… Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB …”

What is the National Labor Relations Board and why is it important?

The NLRB is the quasi-judicial agency charged with administering the 1935 Wagner Act. That created a system of industrial democracy and governs the country’s labor relations.  The law’s sponsor, Sen. Robert Wagner of New York, said secret ballot elections were the linchpin of American democracy and would work in industrial settings, too. The Wagner Act gives employees the right to vote if they want to be represented by a union.

In the hearings before the law was passed, Senator Wagner said:

“We say under Government supervision let the workers themselves … go into a booth and secretly vote, as they do for their political representatives, in a secret ballot, to select their choice.”

Commonly called the National Labor Relations Act, the law is administered by members of the NLRB. Appointed by the president and confirmed by the Senate, they decide the detailed rules governing union and management behavior and how elections should be conducted. In 1989, Congress extended the board’s jurisdiction to include non-profit healthcare facilities. The NLRB has always tried to balance the often-conflicting interests of unions, employers, and employees. Over the years, it has done a pretty good job – those who complain have almost invariably lost their elections.

Who is Craig Becker and why is he controversial?


Prior to his appointment to the NLRB, Becker was the associate general counsel for both the Service Employees International Union and the AFL-CIO, the umbrella organization of our nation’s unions. Before that, Becker taught at the UCLA Law School and has written extensively in a number of the law reviews.

One of his most important articles was “Democracy in the Workplace: Union Representation Elections and Federal Labor Law,” published in the Minnesota Law Review in 1993. In it, he announced  “…employers should be stripped of any legally cognizable interest in their employees’ election of representatives … just as U.S. Citizens cannot opt against having a Congressman, workers should not be able to choose against having a union as their monopoly-bargaining agent.”

Becker also believes employers should have no rights to campaign against unions, or to question voter eligibility, union campaign conduct, or unit determination. “Only the employee constituency and their potential union representative should be heard.”

In his article, Becker claims Sen. Wagner’s thinking behind the original 1935 law—the secret ballot elections between candidates—is dead wrong.  Becker believes: “Lawful as well as unlawful employer activity is distorting the process of labor representation…employers should have no legally sanctioned role in union elections.”

This, no doubt, would surprise Sen. Wagner, were he still alive. 

Why do unions want the law changed?

Unions like the Service Employees International Union and the American Federation of State, County and Municipal Employees Union–the two predominant unions in long term care facilities—want to ease the rules governing organizing because union membership has declined so sharply. In the 1950s, for example, unions represented about 35% of employees in private industry. Now, private sector unionization has dropped to 7.2%. This decline has occurred for a variety of reasons:

Many of the abuses of the 1930’s—age, sex and racial discrimination—are now outlawed by federal and state laws. Employees no longer need union protection.

The growing sophistication of modern human resource practices, including performance-based compensation systems that build such strong staff-administration ties that employee interest in unionization is negated.

Finally, faced with ever more restrictive reimbursement formulas, nursing home administrators now try harder to control their costs by staying union-free. This means unions have less leverage at the bargaining table.

Unions’ failure to have The Free Choice Act passed

The Employee Free Choice Act would have allowed unions to organize employees just by obtaining “authorization cards” from a majority of a facility’s workers with no secret ballot election. Though it passed the House of Representatives, the EFCA ran into such stiff opposition in the Democratic controlled Senate that some “compromises” were offered. These called for “quickie” elections to be held within five to ten days after a petition was filed.

Long-term care objected strongly. Spokesmen for the industry said quick elections did not give them time to present their cases to employees. They wanted the chance to point out to their employees that the high costs of negotiating labor contracts, restrictive work rules resulting in wasteful practices, and rigid contracts preventing quick reactions to changing reimbursement formulas all hurt healthcare facilities … and thus their employees’ job security. In his articles, Becker wants to deny employers any right whatsoever to state their case against unionization.

Since Becker’s appointment, the NLRB has demonstrated a more pro-union stance. It is now seeking briefs for revising its 1991 Park Manor Care Center decision dealing with appropriate units in non-acute healthcare facilities. The board has said it would “take a broader approach utilizing not only ‘community of interests’ factors but also background information gathered during rulemaking and prior precedent.’”  NLRB member Brian Hayes dissented, saying the Board is “contemplating a broad revision of a test for determination of appropriate units in all industries under our jurisdiction—a test that has stood for at least 50 years.”

In non-legalese, this means the board is seeking to overturn its prior rulings saying that non-professional units must include all nonprofessional service and maintenance employees, such as dietary aides, cooks and clerks. Splintering broad units into smaller ones that way makes organizing easier. The NLRB is also proposing employers be required to post notices informing employees of their right to unionize.

How to avoid these expensive problems

Astute nursing home administrators realize the best way to avoid these hassles is to treat their employees so they don’t want a union in the first place. These executives understand that money is NOT the real reason employees seek out unions. Rather, workers want unions because they believe they are not being treated fairly, openly and honestly— without partiality or favoritism. (See “How Your Hospital Can Avoid A Union,” Administrative Radiology, Dec. 1990.)

Some long-term care administrators have been shocked when they receive an NLRB letter saying a union has filed an election petition for their employees. These nursing home executives have misread employee attitudes because they had not taken the time to obtain an expert assessment of staff sentiments.

The first step to avoid such unpleasant surprises is to test the temperature on the patient floors, in dietary as well as the laundry. This cannot be done with a simple paper-and-pencil employee audit many attorneys recommend. Those surveys rarely uncover the nuances of employee thinking.

The best way to understand employee attitudes is through face-to-face interviews by expert outside interviewers. Workers will speak more openly to an outsider than to any administrator or HR representative (for fear of retribution). Also, the ability to discern what employees actually mean by what they say is critical, takes a good deal of experience, and requires knowledge of nursing home practices. (See “Creating A Sense of Community,” Administrative Radiology, Aug. 1992.) 

The next step is to make the necessary changes to eliminate irritants to employee morale. This often requires supervisory training of service department supervisors and charge nurses, tailored to the specific problems of a particular long-term care facility. Canned training purchased off the Internet is inexpensive—but usually ineffective.

The Great Recession during the last two years has placed great financial strains on long-term care facilities, as reimbursement formulas are tightened and beleaguered states delay payments. Since long-term care administrators are desperate to contain costs while providing quality care, only their most efficient ones with the highest employee morale, best quality of service and lowest costs will survive.

Will you facility be one of them? 

The author is an attorney with Imberman and DeForest Inc. specializing in labor law.