As we predicted in  “Labor Pains: Craig Becker’s Troubling Prescription for Long-Term Care Facilities,” in a January 2011 posting here at, the National Labor Relations Board is continuing its pro-union agenda with the same determination as Paris Hilton chasing headlines in the supermarket tabloids. 

On June 21, the NLRB published the proposed changes it wants in rules governing union representation elections. These rules will make the jobs of union organizers easier by handcuffing long-term care managers and fast-tracking representation elections in which a facility’s employees vote whether or not they wish to unionize.

Following the defeat in Congress of the Employee Free Choice Act, which would have allowed “card check unionization” and eliminated nearly all representation elections, union leaders are trying a different way to reach their easy organizing goals. They know “if you can’t legislate, regulate.” And the NLRB regulates labor relations in America.


The new rules

The NLRB’s proposed changes in its rules upend the “level playing field” standard it has traditionally used to balance the oft-conflicting interests of unions, employers and employees. The new rules would:

* Require management to turn over to the National Labor Relations Board names, job titles, shifts, phone numbers, home addresses, and email addresses of all employees within two days of any union petition;

* Reduce significantly the time limits of election campaigns, cutting management’s chance to tell its side of the story about unions. Experts predict election campaigns would be cut to less than 20 days, down from the average of 51 days it achieved in 2008, the most current data available;

* Restrict management’s “free speech rights” by hobbling its ability to address issues and inform employees of the pros and cons of unionization during its campaign;

* Defer challenges to voter eligibility until after the election;

* Defer all other campaign objections until the election vote is completed.

Taken together, these new rules would slash the time between a union petition and election and severely restrict administrators’ efforts to “tell their side of the story.”

The NLRB has already issued rules requiring employers to post notices informing employees of their right to unionize, including the “advantages” of unions. It may also be planning to make permanent the restrictions on management that now apply only after a union files a petition. Time will tell.

The National Labor Relations Act

The 1935 National Labor Relations Act governs the country’s labor relations by secret ballot elections in a system of industrial democracy. The NLRA gives employees the right to vote whether or not they want to be represented by a union.

The NLRA is administered by the National Labor Relations Board, a quasi-judicial federal agency. Appointed by the president and confirmed by the Senate, its members decide the detailed rules governing union and management behavior and how elections are conducted. Despite criticisms by labor and management, it has done a pretty good job over the years — those who complain have almost invariably lost their elections.

Today, unions decry the current rules governing elections despite the fact that they now win nearly 64% of all representation elections. They claim the law is cumbersome, bureaucratic, and slow. They argue employers have unfair “advantages,” most notably, the right to give “captive audience” speeches to employees on paid time to give management’s views. Unions avoid saying they have the right to make home visits to employees to promote their claims, something now denied to management under NLRB rules.

3 prep steps for management

Astute administrators realize the best way to avoid election hassles — and the chance of losing — is to treat their employees so they simply don’t want a union. The best way to do this is to identify and eliminate the irritants that cause employees to seek out unions in the first place. Experts know that money is NOT the real reason employees seek out unions. Rather, caregivers vote for unions because they believe they are not being treated fairly, openly and honestly — without partiality or favoritism. This is the core issue that determines whether or not a facility’s staff will vote for a union.

The first step to avoid elections is to conduct an employee audit to determine worker sentiment, i.e., test the temperature in the work areas — by the washers and dryers in laundry, near dietary’s hot kitchens, and in employee break rooms. 

Employee attitudes cannot be accurately assessed with the simple paper-and-pencil employee audits many attorneys recommend. Those surveys rarely uncover the nuances of employee thinking, especially those of minority workers from foreign lands with different backgrounds and cultures.(SEE: “How To Manage Spanish Speaking Employees,” Area Development Magazine, Sept. 1999.) 

The best way to understand employee attitudes is through face-to-face interviews by expert outside interviewers because workers speak more openly to an outsider than to any administrator 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 modern long-term care practices.

After experts uncover employees’ level of satisfaction or discontent — and the reasons why — administrators can then address employees’ concerns and eliminate the causes of negative worker attitudes. This often requires two subsequent efforts.

The first is supervisory training tailored to the specific problems of a particular facility. Canned training from the Internet is inexpensive — and usually ineffective. (See “Creating A Sense of Community,” Administrative Radiology, Aug. 2002.) The second is developing a compensation system that encourages productivity and employee cooperation while reinforcing the natural employee/employer bond.

Together, these efforts help a long-term care facility control costs while rendering its employees virtually impervious to the promises of union organizers.

It is better to avoid an election entirely rather than merely winning one. Don’t you agree that preventive medicine is better than a trip to the emergency room?

Woodruff Imberman is the president of Imberman and DeForest Inc.