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Why nursing homes must supplant the role of unions

January 1, 2007
by STEPHEN J. CABOT, ESQ
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To avoid unionization, management must act like a union when employee grievances arise

The number of unionized workers in the private sector continues to diminish; it is estimated that no more than a small fraction of the nongovernmental workforce is currently unionized. To maintain a productive nonunion workforce, however, the management of nursing homes and assisted living facilities needs to assume the role that unions played at an earlier time in corporate America.

Unfortunately, not many nursing homes and assisted living facilities have managers trained to “supplant” unions, and that lack of training can be a significant detriment to a company's overall well-being.

Representing nursing homes in all facets of labor relations for the past 39 years, I help them by preparing their supervisory personnel to fulfill the role of unions by not only maintaining productive workforces and high employee morale, but by minimizing the adversarial relationships that have historically existed between management and employees.

Throughout the history of unionized America, unions' foremost role was to listen to employees' grievances/complaints and then negotiate resolutions with management. In a nonunionized company, management itself must be on the firing line listening to the needs, concerns, fears, and grievances/complaints of its employees and be prepared to resolve them equitably.

Alternative Dispute Resolution Programs

Human resources (HR) executives must be expert in administering alternative dispute resolution (ADR) programs, of which there are many types. ADR programs are generally welcomed by both management and employees, because they are cost-effective and swiftly arrive at fair resolutions. One obstacle that I frequently encounter, unfortunately, is management's fear of giving up its traditional power. Yet by involving employees in the process, management will not be perceived as arbitrary or capricious. I always try to explain to administrators and managers that by being proactive rather than reactive, they create a general feeling among employees of inclusion, and that goes a long way toward increasing productivity and morale

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While there are many ADR programs that I recommend as part of an overall proactive program, the three most common types are:

  • Arbitration. This is an adjudication process during which a third party hears both sides of a dispute, weighs the evidence, and renders a decision. Both sides may agree prior to the commencement of arbitration that the arbitrator's decision will be binding, or they may agree that there could be an appeal to another body to reach a mutually acceptable decision.

  • Mediation. In this case, the third party does not render a decision but facilitates open and ongoing communication designed to lead to a mutually acceptable settlement. In most cases, the mediator is an outside professional without the authority to render a decision.

  • Peer review. This is a representative adjudication process that relies upon a selected panel of managers and employees. A majority of the panel is required to render a binding decision. Peer review should not threaten management's perquisites, because in most cases employees will side with management.

If costs are incurred for the services of a mediator and/or arbitrator, management and the employees can agree to share the costs, which are nominal for the employees, or management can absorb the full costs. It is essential that both sides feel decisions are equitable, because it ensures a sense of fairness in the process.

So that all employees are aware of a facility's ADR program, management should structure a policy of inclusion in which various forms of communication will play a pivotal role: newsletters, brochures, e-mails, company announcements on bulletin boards, and flyers inserted into pay envelopes or mailed to individual employees' homes. Open communication should be used not only to inform employees of the program and how it works, but also to inform them of its results.

ADR programs serve an important role in defusing and resolving employee grievances/complaints before they can grow and have manifestly negative effects on morale and productivity. In all of the programs that I have established for my clients, most grievances/complaints were resolved in ways that were fair to both management and to employees.

Focus Groups

When management successfully supplants the role of a union, it also undertakes one of unions' traditional roles: listening closely to what employees think and feel about their jobs, their futures, and their company and its policies.

One of the best means of doing this is through focus groups, which provide management with significant opportunities to gather reliable and representative information about its workforce and their attitudes. Focus groups also permit management to communicate real issues through ongoing employee involvement.

A focus group, for example, might be formed so that management can impart new policy information about healthcare benefits and learn about employee reactions to the new policy. To be successful in determining how employees feel and what course of action management should take, a focus group should be led by a person with the necessary interpersonal skills to ask the right questions and get specific information. To achieve that input, the company (often its HR director) should pick employee participants who will be direct in their responses and are representative of the workforce as a whole. It is important that as many employees as possible be invited to participate in focus groups, and their presence rotated to increase employee involvement.

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