News In Review
WEDDLE's User's Choice Awards recognize the Web-sites that provide the best level of service and value to their visitors, and help others make the best use of the best employment resources online. Congratulations to the 2009 Elite of the Online Employment Industry.

WorldatWork Society of Certified Professionals, an affiliate of global human resources association WorldatWork, reports a dramatic increase in the number of individuals recertifying (or renewing) their professional designations in 2008. The number of recertifications jumped 36 percent, from 1,050 in 2007 to 1,427 in 2008, representing a four-year high. In addition, there were 1,243 new certifications in 2008 for a total of 18,430 since the first certification was granted in 1977.

AspireHR, global Human Capital Management HCM software, consulting, and SaaS companies, announced today the launch of a new corporate website. The site has been rebranded and redesigned with a new look, expanded content, and new features.

Fisher & Phillips LLP, a national labor and employment law firm, opens new office in Louisville, Kentucky, and in Portland, Maine, in a merger with prominent labor and employment boutique, Moss Shapiro. Fisher & Phillips' Portland office.

GMG Regional Media announces their move of The Jobs Mine onto the Madgex Job Board Software platform. Upgrades to The Jobs Mine include branded job adverts, featured recruiters on the homepage and behaviourally targeted featured jobs and display adverts.

InDepth
Stage is set for legal labor brawl - Employee Free Choice Act. From The National Law Journal.
Business calls it "Armageddon." Labor says it's "a modest step." The multimillion-dollar ad campaigns are beginning even before a proposal making the most dramatic changes in labor law in decades is reintroduced in the new Congress.

But reintroduced it will be, because the Employee Free Choice Act (EFCA) is labor's highest priority this year.

The measure would make it easier for workers to organize a union; impose binding arbitration on employers and the union if they fail to negotiate a first contract under certain deadlines; and create stiff, new penalties for employers who violate workers' rights during organizing campaigns or contract negotiations.

Business and labor today appear to stand on opposite sides of an unbridgeable gulf on the proposal, with neither side willing even to whisper the word "compromise." But they do agree that the EFCA, if enacted, would make a fundamental shift in the balance of power in the workplace.

That conclusion is easy to reach partly because there have been so few major changes in labor law since the 1947 Taft-Hartley Act, and that lack of change is part of the problem and a driving force behind labor's push for the EFCA, said labor and employment law scholar Jeffrey Hirsch of the University of Tennessee College of Law.

Hirsch and others say unions have grown frustrated with secret-ballot election procedures that employers now easily manipulate, using long delays to engage in coercive, anti-union measures to influence workers to vote against the union.

And even if successful in a union election, workers often are forced to wait years for a first contract because there is no real penalty for negotiating delays by employers.

But employers contend that the EFCA's "solutions" will result in greater coercion of employees by unions, uninformed decisions to sign union authorization cards and mandatory contract terms that employers would never accept under normal circumstances.

And in a recent and unusual wrinkle in the battle, a campaign has been launched by a group calling itself Save Our Secret Ballots to amend state constitutions to guarantee secret-ballot union elections.

"I wish both sides would compromise," said labor and employment law scholar Charles Craver of George Washington University Law School who, along with Hirsch and others, sees EFCA as a less than perfect answer to important issues raised by organized labor.

"I think potentially EFCA could have a significant impact," he added, explaining that unions win about half of National Labor Relations Board elections. Under EFCA, he predicted, unions would start winning 80% to 85% of organizing campaigns.

"I'd like to see union membership go up, not because I think unions are great, but I don't like to see one side get too much power," he said, explaining that employers hold too much power now. "When unions get too much power, I'll criticize them. I like checks and balances."

But Craver's and others' desire for compromise is unlikely now. From labor's perspective, the political environment has improved the EFCA's chances from the last congressional session, when it easily passed the House but was stopped by a filibuster in the Senate.

"House Majority Leader Steny Hoyer[, D-Md.,] has said over and over it's a top issue and will come up early this year or the latest in early spring," said Josh Goldstein of American Rights at Work. "There's support from the leadership. Since the election, we have a much stronger majority in the Senate, a new secretary of labor who co-sponsored it and a new president and vice president who are strong supporters."

But from business' perspective, "The bill as a whole is something we all consider Armageddon to the business community," said J.P. Fielder of the U.S. Chamber of Commerce. "It's probably the worst piece of labor legislation since Taft-Hartley. I don't see where there would be room for compromise."

Parsing the public relations
There are three key parts to the EFCA, a relatively short and direct measure: card-check union authorization; binding arbitration of first contract; and financial penalties (including triple back pay) and injunctive relief against employers for violations during organizing campaigns.

The organized business community has focused much of its public relations campaign against EFCA on the card-check provision, arguing that it eliminates secret-ballot union elections, and secret-ballot elections are the American way.

"The notion of taking away the right to secret-ballot election is on its face not a good piece of public policy," said Charles Cohen, senior counsel to the labor and employment practice of Morgan, Lewis & Bockius and a former member of the National Labor Relations Board (NLRB).

Under the National Labor Relations Act, workers can form a union in essentially three ways:

The NLRB will conduct a secret-ballot election if at least 30% of workers have signed authorization cards or a petition in favor of a union; a majority of workers then voting is required for certification.

If a majority of workers have signed authorization cards, an employer can voluntarily recognize a union representative. This happens most often in companies already unionized, but more often employers demand a secret-ballot election.

And if the NLRB determines that a fair election is impossible because of an employer's unfair labor practices, the NLRB can recognize a union if a majority of workers have signed authorization cards.

The EFCA would add to that list certification of a union by the NLRB when a majority of workers sign authorization cards.

"Majority sign-up has always been legal," said Nancy Schiffer, associate general counsel of the AFL-CIO. "In the beginning, employers had to recognize a union. Over time, as the process became more company-controlled, employers basically were able to veto that. EFCA doesn't do anything to the election process. It takes away the employer's veto. If a huge shift of power is that the majority gets to decide, then [business] is right. But we don't see it that way."

But unions virtually never file for elections unless they have well in excess of 50%, said Cohen. "They file typically with 60% to 80%. They realize they will have attrition. Therefore there will be no reason to ever have a secret-ballot election."

Long delays a problem George Washington's Craver and other labor scholars contend that the main problem with the NLRB's procedures is the length of time it takes to get an election after workers file their petition. The delay can be anywhere from 30 to 45 days or longer.

"That gives employers a huge amount of time to disseminate anti-union messages," said Craver.

Those who argue that secret-ballot elections are wonderful forget one thing, Craver said. "When you voted for president, you weren't afraid if Obama or McCain won, you'd lose your job. In about half of the elections by the NLRB, there is the explicit or implicit statement that if the union wins, your job is at risk."

Employers have a huge advantage during this time period, he said: They control an employee's destiny; they can force employees to listen to their anti-union propaganda through captive-audience speeches, posts on bulletin boards, letters and e-mails.

"The union has to try communicate in nonwork time," he said, noting that the NLRB also recently held that workers cannot use the company's internal e-mail system to send pro-union messages.

But Craver said it is also true, as employers argue, that some workers sign authorization cards because of union pressure and because they don't realize they are legally authorizing a union to be their representative.

"People read it quickly and think they are using it to get a board election," he said.

University of Tennessee's Hirsch noted that studies show that employer coercion far outweighs union coercion of workers in organizing campaigns.

"Card-check will make it easier for unions to organize," he said. "It takes away a lot of an employer's ability to go after the union during the campaign."

Hirsch said that he would like to see the NLRB reduce the amount of time between petitions for elections and the actual election.

Craver agreed and also suggested changing the law to allow board certification when 60% or a two-thirds majority of workers sign authorization cards.

What employers fear
But is card-check what employers really fear or should fear in the EFCA?

"I think the secret-ballot provision is a part of EFCA that builds public awareness of the issues," said the Chamber's Fielder. "Labor laws typically don't get a lot of play in the mainstream press. But there is broad understanding in the business community that the binding arbitration provision is something we will absolutely go to the mat to fight."

Under the EFCA, after a union is certified, the parties would have 90 days to negotiate a contract. After 90 days, if there is no agreement, either party would be able to ask for federal mediation. After 30 days of mediation, either party could then request a federal arbitrator.

The arbitrator would be authorized to create a first contract covering wages, benefits and other employment terms that would be binding for two years.

Hirsch said the arbitration provision is a "pretty fundamental transformation of how the Supreme Court has interpreted the National Labor Relations Act.

"The court has said the government will not impose any terms of the contract on the parties," he said.

"The idea that you have an arbitrator imposing contractual terms is a pretty big deal. Under some collective bargaining relationships, that happens, for example the Postal Service and some unions have a kind of binding arbitration if talks break down, but that's up to the parties. I think employers should fear that more than card-check."

But the EFCA arbitration provision is in the bill because of a "very real problem," said Hirsch. The rate of successfully negotiating first contracts is low. "Without a contract, voting for a union doesn't do a whole lot of good."

Morgan Lewis' Cohen, however, said collective bargaining is very much focused on an agreement forged between employer and union.

"When it is shifted over to an arbitrator, someone who doesn't have any skin in the game, it becomes a situation where who knows whether the employer can or will be willing to live within the terms of that agreement," he said.

"There's no way an arbitrator can put himself or herself into the shoes of the employer and say this is what's good for the business or not," Cohen added. "It's not a skill our country has produced people to have, and it's almost unheard of in the private sector."

But the AFL-CIO's Schiffer countered, "The Wagner Act encouraged collective bargaining. If you know you're going to have a contract, then you bargain to get a contract. If you know you're not, where's the incentive? And when you look at it that way, EFCA again doesn't seem like a huge change."

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"It is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change."
      - Charles Darwin

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