A year ago, as it became apparent that Sen. Barack Obama would become President Obama, it was widely assumed that the historic election of Obama and a democratic majority in Congress would amount to a slam-dunk for the interests of organized labor. In addition to having a closer philosophical kinship with those soon to be in charge, the unions had contributed hundreds of millions of dollars to the Obama campaign as well as to other winning tickets. Despite decades of declining membership— recent estimates are that only 7.6 percent of private-sector employees are unionized— unions seemed poised to benefit from broader political support.

Yet four months after Obama took the oath of office, the Employee Free Choice Act (EFCA), an organized labor-backed initiative that would make it considerably easier for unions to organize work sites, disappeared from the Senate docket due to insubstantial support. Although the bill was passed by the House in 2007, the bill would not have passed in the Senate with a filibuster-proof super majority. Indeed, The Washington Post’s political blog “The Fix” listed EFCA as one of the biggest surprise “losers” in the Obama administration’s first 100 days.

Was the deferment of EFCA a promising sign for employers? Or just a bump in the road for organized labor? While literally hundreds of business groups successfully lobbied lawmakers to think twice about approving EFCA as originally written, it remains very much alive. As recently as June, Senator Tom Harkin (D-IA) declared his intent to introduce a compromise bill within a few weeks.

“Too many employers have been lulled into a sense of comfort that EFCA has been defeated,” says Michael Lotito, an attorney for Jackson Lewis in San Francisco. Even if the bill were not reintroduced this session, employers must stay vigilant, Lotito adds, since there are many ways union priorities can be accomplished through policies by a new, more union-friendly administration. “It’s not unusual for Washington to do something and for we as employers to say ‘When did that happen?’ and the answer is, ‘Oh, five years ago.’”

Labor relations experts agree that EFCA is but one manifestation of a larger sea change already under way. Of particular note is recent “copycat” legislation in 20 states, as well as other union-friendly state initiatives, and the appointment of labor activists to key posts in the Obama administration.

“What I think people are missing out on is what is already out there. The antenna’s up to the ceiling,” says Robert Mulcahy, a management labor attorney and veteran labor negotiator with Michael Best & Friedrich LLC of Milwaukee. “There’s a lot more than [EFCA] going on at the local level.”
Senior living providers currently have a narrow window of opportunity to make their case known to lawmakers and get their own houses in order, before any new version of EFCA is introduced. “Now’s the time to make certain of your underlying employer philosophy of an issue-free environment that leads to a union-free environment,” says Lotito.

Infringing on Privacy

As Assisted Living Executive has reported, if enacted into law, EFCA would make it easier for unions to sidestep secret ballots— currently the most common way to gauge employee support for unionizing a workplace. Instead, the legislation as originally proposed would sanction the use of less formal, more public signature-gathering methods, often called “card checks.” Employers oppose card checks, which they argue increase the potential for union organizers to use coercive or deceptive organizing tactics in their eagerness to recruit more dues-paying members.

“It’s a very one-sided piece of legislation,” says Jordan Bernstein, senior vice president of Cassidy & Associates, a government relations firm. “With the economy, now more than ever, business can’t handle the costs this bill would bring.” Additionally, EFCA would considerably shorten the window of notice employers would receive prior to an election, making it more difficult for employers to promote their own cause with employees. The bill also would require binding arbitration as a fallback if unions and management could not come to an agreement within 90 days, introducing yet another outside party into important business decisions.

As a senator, Obama had co-sponsored EFCA and during the presidential campaign, he spoke in support of it. Union leaders have been widely quoted in the mainstream press as saying that EFCA was critical for their agenda. So why didn’t EFCA get passed the first time around? One factor was the galvanizing effect the bill had over a wide range of employers across hundreds of industries, who came together to stop the bill.

“Business has done an excellent job of stepping up and educating members of Congress,” Bernstein says. Most resonant was the steep financial burden that EFCA would impose on employers in an already rocky economy.

At the same time, the bill stopped just short of being brought to the floor in the Senate; it is entirely possible that the bill could be tweaked to earn the support of two more senators needed. As of June, Sens. Tom Harkin (D-IA) and Arlen Specter (D-PA) were working on an alternative bill. For its part, the employer lobby has been quick to state it will not sanction any such compromise.

“Business’s side is that this legislation can’t be fixed,” Bernstein says. “This shouldn’t be the starting point.”

Regardless of the fate of EFCA, other federal-level changes are expected on the policy side. Obama has appointed several union activists to a seat at the table in the Department of Labor and for a new task force on middle-class working families.

“Suddenly you have people throughout the administration that have very, very, very strong ties to labor … It’s what they believe in,” says Lotito.

Keeping Local Watch

On the local level, unions have championed a range of initiatives through state legislation, governors’ executive orders, and even municipal measures. Card check laws have been enacted in 20 states (see the sidebar on this page for a list of those states). Other new initiatives around the country include requirements for employers to pay prevailing wages when working on public-sector projects in some states, which likely would have a ripple effect on the private marketplace. Recent legislative action in Massachusetts and Wisconsin, and a pending bill in Congress, would require employers to pay sick leave for full-time hourly employees (i.e., non exempt).

“I think there’s definitely a correlation between what goes on in the state and what gets done on the federal level,” says Mulcahy. “Am I concerned that this could be a back door effort? Sure.”

While unions have been active in state houses, the incidence of “streetlevel” organizing activities in assisted living and senior living communities has experienced a lull over the past two years. Lotito regards this summer as an important opportunity for employers to take the time to head off union activities in their own businesses. “At some point, organized labor is going to have to be organized labor again and focus on employees and not politicians,” he says.

Now also is the time for assisted living employers to make their case against EFCA to their elected representatives. If some version of EFCA makes it onto the congressional docket, it would be more likely to pass both houses this fall rather than in the 2010 election year. “This is the window,” Bernstein says.

While industry groups such as the Assisted Living Federation of America can educate elected officials about the consequences of the bill, lobbyists don’t vote.

“The key is grassroots,” says Bernstein. “It’s important and crucial on an issue like this that [lawmakers] hear from their constituents, not just people in Washington.” Bernstein and others interviewed by Assisted Living Executive on this topic recommend writing, calling, and visiting their senators, in particular, since that is where they can do the most good; passage of an EFCA compromise bill is widely considered to be a foregone conclusion in the House. Lawmakers need to hear specifics about how the EFCA would affect constituent businesses and, by extension, the geographic community in which they operate, particularly in states with swing Democrats: Pennsylvania, Arkansas, Nebraska, Louisiana, and Virginia.

the Assisted Living Federation of America’s Online Action Center makes it easy for constituents to send letters to their elected officials. The Web site provides sample letters that can be e-mailed to specific members of Congress in just a couple of clicks. Go to www.alfa.org/advocacy for details.

Whitney Redding is a contributing writer to Assisted Living Executive. Reach her at wredding@alfa.org.

Who’s Who

Contact information for members in this article:

› Jordan Bernstein, jbernstein@cassidy.com
› Jill Haselman, jhaselman@benchmarkquality.com
› Michael Lotito, lotitom@jacksonlewis.com
› Robert Mulcahy, rwmulcahy@michaelbest.com   

Card Check vs. Reality Check:  5 Tips for Providers

Experts advise providers to actively strengthen and sustain a culture of mutual trust between managers and associates. Michael Lotito of Jackson Lewis believes the perception that the actions of large corporations in the financial sector are largely to blame for the current economic crisis has been generalized to distrust of employers in general. “This overall economic meltdown has played very well to organizers’ message,” says Lotito. “Unions thrive when there is distrust.” Labor relations and human resources experts recommend providers take these steps to help protect their operations:

1. Talk to your employees.

Tell employees about your stance on unions, and why you would not want to go there. “We offer extensive education about unions,” says Jill Haselman, senior vice president of organizational effectiveness for Benchmark Assisted Living, based in Wellesley, Massachusetts. “We don’t make unions out to be the bad guys. We just don’t feel organized labor is good or effective for our residents.” She cautioned against unions setting up employer-employee requirements that impede in how personal care is provided.

2. Evaluate workplace conditions through union eyes.

Train your supervisors in human relations, ensure clear opportunities for advancement, demonstrate that employees’ complaints about supervisors are taken seriously, etc. “For an associate, the company is only as big as one supervisor. If you have a supervisor who doesn’t respect their team and fails to care and listen, the unions will prey on that one situation, as if every supervisor were ineffective and insensitive,” says Haselman.

3. Foster a culture of candor without retribution.

Make candor a core value, and reinforce it through robust internal feedback and communications. “Everyone, employees to management, has a responsibility to speak up, and the company has the responsibility to listen and take appropriate action,” Haselman says, adding: “Where the rubber meets the road is in the follow-up and follow through.”

4. Review your employee handbook.

Are company policies clearly stated and upheld? Is there a valid no-solicitation clause? Is there a message to employees explaining the employer’s position on labor unions? “Take a long, hard look at that handbook,” advises Robert Mulcahy of Michael Best & Friedrich LLC.
 

5. Stay a step ahead of employees’ concerns.

Rather than wait for a union to press its case on your employees, Mulcahy says, beat them at their own game. “If you’re going to go to $11 or $12 an hour, do it now. Make the union irrelevant.”

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