How to Avoid (or Decertify) a Union

As you may have noticed, organized labor has taken a new interest in attempting to unionize nursing homes. What's more, the National Labor Relations Board has been certifying union elections in nursing homes at a rate unprecedented in recent years. This unwelcome news comes at a time when nursing homes face increasing regulation, decreasing public resources and growing competition for staff and residents. In short, it's another headache that nursing homes don't need at this point. What can be done to relieve it?

First of all, let's address why this is happening. Nursing home staffs have, of course, always been a fertile field for union organizing due to their typically low pay and demanding workloads. The advent' of John Sweeney as President of the AFL-CIO stimulated new interest by the Service Employees International Union and the National Union of Hospital and Health Care Employees (1199) in organizing these and other health care workers. Sweeney, a former president of the SEIU, has had long experience in this arena. He put that experience to use this past summer by fielding hundreds of college-based volunteers to spread the union word among nursing homes and other employers throughout the coun-try. He has also supported training of organizers to "infiltrate" facilities by having them seek employment as staffers and working from within.

This is one reason (though not the only one) that the NLRB has received and approved the largest number of organizing petitions from nursing home staffs since 1991. Further, under new NLRB guidelines, the time between the filing of an election petition and the actual elec-tion has been reduced radically, from months to weeks -- an average of about 42 days, in fact. This is barely enough time for nursing home management to react and go through the early stages of panic before the election date hits. It's not a pretty picture for the unwary.

This is especially unfortunate, since there are several ways nursing homes can avoid this scenario before it ever becomes a threat. In fact, these methods can be applied by nursing homes that have already been organized, and help lead them toward the "promised land" of union decertification. It boils down to today's labor-management version of the three R's: Recognition. Repetition, Reinforcement.

Before explaining this, I'd like to lay out the context in which this is occurring. In the labor environment of the 1990s, the issues are not as focused as they once were on such tangibles as wages and benefits. Today it's more a matter of "Does the employer care?" Is the em-ployer treating its employees with re-spect and dignity? Can you trust the employer? These concepts are very dif-ficult to pin down but, believe me, today's trained organizer understands them thoroughly and knows how to put them to very effective use.

In short, trust -- or lake of same -- has become the major issue. Very simply, if management can retain employees' trust, it has reasonably little to fear from today's organizing activity. Once it begins to lose that trust, however, that is another story-and owe trust is lost, it is very, very difficult to get it back. Rebuilding employee trust takes about a year in a non-unionized facility, and two-to-three years in a unionized facility, according to rules of thumb I have developed over the years. Patience is very much in order -- but that patience will be rewarded.

The three R's, as I mentioned, are recognition, repetition and reinforcement. Let's start with recognition, which is the first step in any program designed to inspire employee trust. It is the corner-stone of what I call your labor relations action plan -- a formalized plan similar to any financial or marketing plan you might routinely devise. Like these other plans, it covers a fixed period -- say, one year. Recognition can begin with an employee survey every nine months or so on such issues as pay (in non-unionized facilities only; unionized ones have a problem which I'll explain later), staff-ing, performance improvement and other is sues. These surveys genuinely seek employees' opinions and give them feed-back within about one month.

Another component of recognition would be an awards program -- "Em-ployee of the Month" or "Best Sugges-tion," for example. The program would be overseen by a five-to-seven-member committee with employees forming the majority. Winners are publicized, re-ceive thanks and get a cash award large enough to be meaningful (but not so large as to be interpreted as a bride).

This process should be conducted on a regular, routine basis-repetition. Employees will, over time, begin to at least understand why lee-than-satisfactory situations-concerning pay or staffing, for example-exist. They may not look or even agree with the reasons, but they'll understand. Beyond this some genuine improvements may occur, with employees' responsibility for this being directly acknowledged-and that?s reinforcement.

Consistent adherence to this approach will build and strengthen the employee trust that is the crucial issue in today?s labor relations. It can, and often does, lead to their questioning the necessity for a union (and for paying union dues).

What about the facility that has a union in place, where trust as presumably been eradicated? What works then? I submit that the exact same approach works; it just takes longer.

There is also, for these facilities, a legal consideration that must be taken into account. On the basis of a relatively recent decision, E. I. DuPont DeNemours and Co., 311 NLRB 983(1993) ("DuPont") [also see a related case, Electromation, Inc., 309 NLRB 990(1992) ("Electromation")], the NLRB has ruled that it is illegal for a unionized employer to establish an employee committee to deal with issues pertaining to wages, hours or working conditions; these issues are considered by the NLRB to be mandatory subjects of collective bargaining.

This does not necessarily rule out the use of surveys or the committees that I have described, however. Issues that still be addressed include such matters as employer/management communications, quality of care and productivity. Even on this more-restricted basis, the three R's can, and will, work.

There is also the psychological con-cern that unionized employers will be reluctant to reach out to employees in any way, whether for fear of upsetting the union or simply because they've given up and automatically refer employee concerns to the union. It only strengthens the union, of course, when employees see it as their only recourse. It is crucial that front-line supervisors be trained to be responsive to employee concerns. They must show that they are open to hearing employee concerns on all matters other than those defined as subjects of bargaining.

Recognition, repetition and reinforcement come into play again. Recognizing the need for concern, repeatedly address-ing those concerns and reinforcing the positive results will re-establish trust and again, increase questioning of the need for a union. And in the "real world," I can attest, nursing home union decertifications do occur.

The bottom line is that today's em-ployer must be proactive with respect to employees' concerns. Ideally, that should always be the case. In today's labor-management environment, employers really have no choice.

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How to Screen Out Troublemaking Employees...Legally

Far too many companies shoot from the hip when hiring people, figuring they can always get rid of them in a month or two if they don't work out. That's a recipe for trouble, thanks to the vast number of legal weapons that employees can now wield.

It always makes more sense to screen job candidates carefully... and hire only those who will fit in well. With the right screening techniques, this can be done.

Start by establishing a company philosophy. That might sound corny, but it helps. Whatever the company's goals may be, refine them, describe them and put them into a document that can be given to prospective employees. That document tells job applicants about the company's attitudes.


Find out about candidates' attitudes. The applicable questions are perfectly legal as long as they dovetail with the company's business-related philosophy statement and as long as all interviewers ask all applicants the same questions. All applicants should also be evaluated according to the same standards.

Effective questions for rooting out potential troublemakers:

  • If we were to call your former employers, what would they tell us about you?
  • Do you think you should be able to criticize management?
  • How do you react to rumors on the job?


What you're looking for in the answers to all of these questions are honesty, openness and respect for the chain of command. Employees who have nothing to hide, for example, will urge the interviewer to call their former employers. They're confident that the report will be good.

If there's an awkward pause, or if the candidate hems and haws, I often a sign that there's something he or she doesn't want your company to find out. In that case the answer usually goes something like this: Oh, I think they 'II give me a pretty good report...well, I really didn't get along too well with my immediate boss.

An applicant who gives an unequivocal no to the question about criticizing management usually isn't being honest. The kind of answer to look for: Not in every instance; But when management is doing something that I believe is dangerous or unfair, I feel that I should be allowed the opportunity of talking with management about the situation.

For better or worse, the grapevine is one of the most effective communications channels in any company. Here again, the applicant who claims not to pay any attention to rumors isn't being honest. Because many rumors involve guesswork about what management is up to, this question is a cross-check on the previous one about criticizing management, Best answer: Rumors can be upsetting, and if a rumor would impact my job, I'd like to feel that I could pursue it with management.

To probe further, ask: How would you discuss such a rumor with management? The best answer would be something indicating respect for authority and a desire to work through channels. If satisfaction isn't obtained at the first level in the chain of command, the employee would go to the next level. Time and time again, employees who give these answers are the least likely to cause trouble later.


The two things that most often trigger equal employment lawsuits are questions that aren't work related or that differ from candidate to candidate. Attitudinal questions that dovetail with the company's philosophy statement, however, are (or should be) clearly work related. And when every applicant is interviewed and evaluated according to the same standards, no one can claim discrimination. The key here is that the system establishes an even-handed measuring rod -- it doesn't mix apples and oranges.

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Auditing Your Company's 'Human' Resource

As an auditor, it is your responsibility to analyze the effectiveness of your resources. But most auditors overlook a company's most important, and often most costly resource, its employees. An auditor is particularly qualified to monitor the existing workforce and to develop a system through which an employer can hire those employees who will work most productively within the company's work environment.


Before designing an effective hiring system, you must evaluate the current workforce and work environment. You can complete this evaluation by conducting a series of audit-interviews with selected members of management. The preliminary audit-interview accomplishes two goals: it defines the company's "work philosophy" and allows you to formulate a description or "wanted poster" of the type of employee who will work most productively within that company.

Work Philosophy Defined

The "work philosophy" is a policy statement regarding the company's commitment to maintaining a cooperative employee relations atmosphere and, where appropriate, the advantages of operating without interference from organized or outside representatives. All levels of management, particularly top management, must be fully committed to the principles outlined the "work philosophy" if it is to provide a strong base upon which to build an effective hiring system. For that reason, the philosophy must be an amalgamation of top management's views, as ascertained through the initial audit process, of the type of employee relations environment which is appropriate for that company.


The initial audit process can also be used to develop a profile or "wanted poster" of the ideal employee. The employee profile defines specific behavioral attributes and values. An employee profile should not be an outline of personality characteristics, but rather an assessment of a prospective employee's propensities and past work experience.

You can design a profile for your company or client by evaluating the existing workforce. Supervisors and members of management should be asked to describe those employees who are "successful" company employees and those who are unsatisfactory. You should caution those individuals interviewed to avoid describing employees' personality traits. What is more important is how the successful employee and the unsatisfactory employee view the work they do, the people they report to, the company's policies and procedures and the employees with whom they work. For instance, the initial audit could determine the amount of independence which is suitable for an employee of that company. It could also determine whether the work requires employees who think for themselves and can adapt their work habits to specific situations, or employees who are satisfied performing tedious and repetitive work.

As an alternative to audit-interviews, you can gather this preliminary information by conducting an opinion survey. An opinion survey will allow supervisors to express their unbiased views regarding the existing workforce and has the added benefit of eliciting the supervisors' opinions and attitudes about their work environment in general.

Wanted Posters

Once you have gathered a sampling of "wanted posters" from management and supervisory personnel, you can begin to distill their descriptions into a list of desirable and undesirable characteristics. These profile characteristics form the backbone of an effective hiring system.

The profile should list and define both positive attributes and negative attributes; in other words, those characteristics an interviewer should look for in a prospective employee and those characteristics an interviewer should seek to avoid. By developing a profile of this nature, you can provide your company or client with an objective method of determining whether an applicant will work well within the company's work environment to achieve the company's goals and objectives.


Once positive and negative characteristics are defined, you should help your company or client develop a set of interview questions designed to elicit the various profile attributes. You should phrase interview questions in a way which encourages the applicant to respond with more than a "yes" or "no" answer. Each question should be accompanied by suggested answers and an explanation of the positive or negative attributes which the suggested answer indicates.

Questions and sample answers of this nature provide an interviewer with a consistent, objective system for evaluating prospective employees. The hiring system can be made even more objective if you develop a tally sheet which summarizes and evaluates an applicant's responses to the interview questions. A tally sheet assigns a point value to each attribute indicated by the applicant's answer to each interview question. The total number of points the applicant receives determines whether the applicant should be considered for employment.

A Second Benefit

Aside from the benefits of assessing an applicant's suitability for the company's work environment, a hiring system of this nature can help protect an employer from charges of discriminatory refusal to hire. An interview system developed through this process can assure that no unlawful questions are asked. In addition, if challenged, the company can produce a standard set of interview questions and the applicant's tally sheet to rebut any allegation that a decision not to hire a particular individual was based on a discriminatory motive.


The auditor's job does not end when the hiring system is completed. You should also develop a system of general labor relations audits which help the company assess the effectiveness of the hiring system and which allows the company to monitor its employee relations climate. Labor relations audits can fulfill a number of employee relations functions, including

  • Minimizing overall labor relations "risks" by minimizing exposure to liability under state and federal anti-discrimination laws and under theories of wrongful discharge
  • Align employees' expectations with the company's organizational philosophy and economic reality
  • Promote and maintain employee morale, effectiveness, satisfaction and loyalty to the company
  • Monitor personnel procedures and policies
  • Maintain a competitive compensation package


You can develop a series of audit forms to be completed by supervisors or other management personnel on a regular basis to monitor various elements of the company's working environment which effect its labor relations climate. Various types of labor relations audits you can develop to accomplish these goals include:

  • Employee Audit -- monitors each employee's loyalty to and attitude toward the company.
  • Vulnerability Audit -- assesses a particular employee group's receptivity to a union organizing attempt.
  • Daily Human Resource Audit -- completed by the individual responsible for handling human resource matters. This audit reviews on a daily basis absenteeism, discipline and other factors which would indicate the company is vulnerable to a union organizing attempt.
  • Weekly Human Resource Audit -- reviews turnover rates, absenteeism, tardiness, lay-offs, disciplinary action, voluntary terminations, forms of communications used, injury rates and any other factor which could affect the overall human resource climate of the company.
  • Monthly/Quarterly Human Resources Audit -- includes an analysis of wage and benefit comparisons, union organizing activity in the company's geographic area, a review of hiring procedures, orientation procedures, methods of communicating the availability of and tilting job openings, training, discipline, resignations, awards, communication programs, points of employee dissatisfaction, and other factors affecting the company's work environment.

A combination of labor relations audits used in conjunction with a hiring system can help a company to pinpoint trouble areas while developing and maintaining a workforce which will maximize the company's productivity and minimize its vulnerability to outside interference.

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