Seniors Housing Business is the magazine that helps you navigate the evolution of the seniors housing industry.
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Saul / Managing Director WHAT WE OFFER: • Represent over 30% of announced transactions • Built a team with over 150 yrs. of brokerage experience • Sold over $2,200,000,000 • Assembled largest team of dedicated Sr. Housing brokers • Represent Sellers confi dentially • Achieve an average 96% of list price • Preserve wealth for our clients • Manage transactions from start to fi nish By Jef Shaw A fnal rule pubished by the National Labor Relations Board (NLRB) in December 2014 regard- ing union election timelines could have a major impact on the seniors housing industry. The new rule includes several elements, but the most signifcant consequence of the ruling is short- ening the amount of time between fling 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 aver- age time between fling 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 "elimi- nating unnecessary litigation and delay." The new rule will take effect on April 14. Jeff Harrison, a shareholder practicing out of the Minneapolis offce 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 time- line. 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 employ- ees. Accordingly, they are very signifcant for any employer that wishes to remain union-free." The current rules give employ- ers who want to avoid unioniza- tion 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 employ- ees about campaign issues and the benefts of a direct working rela- tionship," 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, oper- ators 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 Wil- liams. "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 signifcant advantage over employers hoping to avoid unionization. "For employers, it signifcantly 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 informa- tion out to their employees." Unlike a large, public cam- paign 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 Harri- son. "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 proac- tive, since there will no longer be time for reaction if employ- ees 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 elec- tion will now be so short, union education campaigns should be prepared in advance. Employers that pay close atten- tion 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 leader- ship 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 relation- ship 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 com- munication, collaborative prob- lem solving, trust, and mutual respect between employer and employee." n New NLRB rule will lead to more unionization, say industry experts 24 www.seniorshousingbusiness.com Seniors Housing Business n February-March 2015