Why nursing homes must supplant the role of unions

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

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.

It is also important that the purpose or goal of the focus group be established prior to inviting employee participation. Without a statement of purpose, the focus group could easily turn into a free-flowing conversation that aimlessly meanders from subject to subject. If the purpose of the group is to learn how employees feel about the costs of health insurance, how those costs should be borne, and what variables an employee may choose, then the facilitator will want to ask questions and offer topics of discussion that will elicit pertinent information to help management make a thoughtful decision. Finally, the questions should be designed to obtain the fullest and most informative answers to help the facilitator reach the stated goal of the focus group.

Throughout the focus group session, its members should have an equal and sufficient amount of time to make their contributions if the group is to serve its stated purpose. If the facilitator is not in control of the group, one or two individuals may dominate the meeting, thus defeating the representative makeup of the group. By ensuring that every member of the group can make an equal contribution, the facilitator will be seen as a neutral party rather than an advocate for management.

Focus groups explore and examine, in a flexible manner, issues that are part of an overall strategic plan. Such groups are an effective means of collecting valuable data. Those data, when analyzed, will be essential to management’s making decisions that will meet the needs of its employees, thus maintaining high levels of morale and productivity. The results should be published as part of management’s commitment to open communication with its employees.

Team Building

Focus groups lead to team building. While focus groups are exploratory, teams are the instruments that implement strategic plans designed to accomplish specific goals.

Historically, unions have created a sense of employees playing on the same team, a sense of employee solidarity. In today’s complex work environment, management can create that same spirit of solidarity to accomplish commonly shared productivity goals and to solve important problems.

Teams can serve such purposes as enhancing communication and resolving conflicts, but teams are most effective as a means of increasing productivity and enhancing employee morale. When it comes to meeting certain productivity criteria, for example, the entire team is mutually responsible for reaching those goals. One need only look at various sports teams to see how valuable mutual cooperation is to winning. In successful corporations, no one is an individual sprinter, although individual initiative is extremely important to the overall success of a team and the achievement of its goals.

“TEAM” has come to be an acronym for “Together, Everybody Accomplishes More.” And that helps to dissolve the us-versus-them relationship that unions have fostered in order to create leverage.

When teams of workers are formed, they can be banded together to accomplish specific tasks and then re-formed to accomplish other tasks. Team membership should be flexible. As an athletic coach calls in new players to replace others in different situations, so management will reconstitute teams to solve different problems and achieve higher goals of productivity.

To create effective teams, management must clearly determine what problems it hopes to address by forming those teams. It is also important that all levels of management support the team(s). Finally, teams must have the right mix of people to get a job done. The most effective teams include idea people, detail people, and facilitators. In other words, those who see the forest, those who see the trees, and those who see both.

Once teams have been established, it is important that they meet regularly to review their progress. They should keep team records and provide management with appropriate tracking tools. One individual should be chosen to report to management on the team’s progress, problems, and day-to-day operations.


An essential spur for a team’s success is having an effective coach. A coach is a counselor, not a disciplinarian. The coach encourages employees to do better, to accomplish more; the coach works to rehabilitate negative employee attitudes, emphasizing what’s positive; the coach is not a punitive taskmaster.

In fact, a successful coach in today’s highly competitive workplace is similar to the coach of a winning sports team. The corporate coach does not have a whistle and game book, but the effective coach can inspire people to higher levels of productivity, to meet goals, and to feel a sense of mutual commitment. The coach deals with poor performers and mentors team members so that they realize their true potential. Coaches inspire, motivate, and guide their teams. Such coaches create high-energy climates that foster initiative and innovation. A team with an effective coach not only will reach all of a company’s goals, but will do so rapidly and with a sense of a job well done.

Employee Advocate Representative

As unions have shop stewards who represent the interests of the union members by reporting back to union officials, so nonunionized companies can have what is known as an Employee Advocate Representative (EAR). The EAR position is usually a trial assignment aimed at improving morale by involving employees in a broad spectrum of management activities and decisions. When employees want to make their concerns known to management, the EAR listens and then voices those concerns to management. The EAR is both the ears and voice for employees. This position may or may not be salaried and is held for a limited time. Once a term expires, another employee is either chosen or volunteers to be the EAR. To enhance a sense of employee inclusion, the EAR position should be filled by as many employees as possible. Such rotation ensures the greatest amount of employee inclusion and further guarantees that no employee is perceived as a being a tool of management. In small companies, the EAR can work in that position for an hour or two each week.

The responsibilities of the EAR include providing input about employee issues and suggesting solutions at regular department meetings. In addition, the EAR may assist in promoting company communications, which includes communicating productivity and quality issues to key personnel and assisting with and/or developing action plans, providing articles for the employee newsletter, and reviewing bulletin board communications, company letters, and payroll stuffers. The EAR may also play a pivotal role in assisting management with training and quality control programs, while also serving on committees dealing with employee awards and activities.

If management implements the activities described in this article, it will have successfully supplanted the role that unions have played in the past, and it will do so without the negative aspects of unionization, such as strikes, walkouts, and an often-pervasive atmosphere of opposition. Management and employees can rise Up From Confrontation and create a workplace where Everybody Wins! (as I titled two of my books) and achieve new levels of mutual cooperation, profitability, and productivity.

Stephen J. Cabot, Esq., Cochair of Saul Ewing’s Labor, Employment, and Employee Benefits Practice Group, is a sought-after speaker popular with leading corporations and trade associations. He has been profiled on the front page of the Wall Street Journal, which wrote that “when the boss calls Cabot, the union has its problems.” He has also been interviewed on national television news programs and is the author of several books, including Stephen Cabot’s Complete Guide to Labor Relations in the 21st Century. Saul Ewing LLC is a 250-attorney firm, providing a full range of legal services from seven offices in the mid-Atlantic region. Its clients include regional, national, and international businesses and not-for-profit institutions, individuals, and entrepreneurs.

To send your comments to the author and editors, e-mail cabot0107@nursinghomesmagazine.com.

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