New NLRB rule will lead to more unionization, say industry experts

A final rule pubished by the National Labor Relations Board (NLRB) in December 2014 regarding union election timelines could have a major impact on the seniors housing industry.

The new rule includes several elements, but the most significant consequence of the ruling is shortening the amount of time between filing an election petition for a proposed union and the date the election is held.

Under current rules, there is a mandatory 25-day waiting period between the petition for a union and the election itself. The average time between filing a petition and the election in recent years has been almost six weeks, say industry experts. Under the new rules, that timeline could be less than two weeks. 

The NLRB, in a statement about the ruling, says the purpose of shortening the timeline is “eliminating unnecessary litigation and delay.” The new rule will take effect on April 14.

Jeff Harrison, a shareholder practicing out of the Minneapolis office of Littler, a large global labor and employment law practice, advises multiple companies in labor and employment matters, including helping them prepare for this shortened unionization timeline. He says the shift in procedure is major.

“The NLRB’s new procedure — often called ‘quickie’ or ‘ambush’ elections — is the biggest change to the union election procedure in decades,” says Harrison. “The bottom line is that the changes will make it much easier for unions to organize new groups of employees. Accordingly, they are very significant for any employer that wishes to remain union-free.”

The current rules give employers who want to avoid unionization enough time to make their case employees, says Harrison. The new rule will shorten the discussion, giving an advantage to the pro-union side.

“Employers have traditionally used this time to educate employees about campaign issues and the benefits of a direct working relationship,” says Harrison. “Without a doubt, many of the elections in which employees rejected union representation would have gone the other way if the vote had been taken on the 13th day.”


Seniors housing ripe for unionization

Because of the nature of most seniors housing communities, operators should be prepared for this procedural change to affect them. Paul Williams, who covered labor issues for many years as senior director of government relations for the Assisted Living Federation of America, says seniors housing will be targeted by potential unions because of the industry’s growth and currently low percentage of unionized facilities.

“It’s going to be easier overall for unions to be able to organize as a result of this law, regardless of the type of business,” says Williams. “With the growth of senior living and the expected growth over the next decade, we think it makes it particularly ripe.”

Williams agrees with Harrison that the shorter timeline gives pro-union forces a significant advantage over employers hoping to avoid unionization.

“For employers, it significantly alters and inhibits the way they can appeal or challenge certain legal aspects of unionization,” says Williams. “Before there was not a lot of time. Now there’s almost no time to get that information out to their employees.”

Unlike a large, public campaign that one might see at an auto plant or other big factory, the relatively small size of a seniors housing community makes it easier to organize covertly and surprise operators, says Harrison. “Without the safety net of a long post-petition campaign, an employer surprised by a petition is not likely to remain union-free.”

The solution, according to Harrison, is for operators to plan and be prepared, to be proactive, since there will no longer be time for reaction if employees bring a union petition. This preparedness includes updating policies and procedures to be in line with union rules, as well as laws regarding what companies are legally allowed to say and do during a union petition. Since the timeline from petition to election will now be so short, union education campaigns should be prepared in advance.

Employers that pay close attention to the problems and morale level within their business can also try to handle problems before they turn into calls for union formation.

“Employers should shift their attention to proactive measures that prevent employee issues from growing into organizing issues,” says Harrison. “It is essential that supervisors receive training that not only reviews how to legally respond to union activity, but also emphasizes good leadership practices that make unions unnecessary.”

Operators unhappy with the NLRB ruling have little recourse currently, though it is already being challenged in federal court. The best defense against potential union formation, Harrison says, is to simply have a good relationship with employees.

“The new election procedure does not change the fact that good employers are less vulnerable to union organizing,” emphasizes Harrison. “The key to remaining union-free remains a very basic formula: open two-way communication, collaborative problem solving, trust, and mutual respect between employer and employee.”