IV.THE CLEARINING OF THE PERFECT STORM:WHAT DOES THE FUTURE HOLD FOR DEFINED BENEFIT PENSION PLANS?

Discussion

Charles Cohen
Morgan, Lewis & Bockius LLP

    I found the remarks made by the other speakers to be quite thought-provoking. A good deal of time and effort has obviously gone into consideration of this most important topic.
    One of the thoughts that struck me is the political context in which this January 2005 discussion has taken place. Before the national elections just two months ago, there was a great deal of emphasis on the Miller-Kennedy Bill, which would have done away with secret-ballot National Labor Relations Board (NLRB) elections whenever a union files a representation petition with a majority of authorization cards. More than 30 Senators and more than 200 Congressmen had cosponsored the bill. Obviously, in light of the outcome of the election, the chances of passage of any such legislation are severely diminished. If anything, a serious push to ban establishment of the bargaining relationship without a secret ballot NLRB election will receive serious consideration in the ensuing months.
    From my perspective, the push for neutrality agreement and card check recognition stems from the dramatic decline in union density. Although this diminishment of union density has undoubtedly created serious problems for organized labor, it is my view that the reasons for the decline in union density have been misplaced. The issues are not, I submit, how the NLRB handles elections, the time frame in which those elections are held, or lawful employer campaigns against unionization. To be sure, there are employers who violate the law, and that is where the remedial processes of the NLRB come into play. To me, the decline in union density is much more a function of the globalized economy in which we all find ourselves, resulting in competitive pressures that make it all the more unlikely that employees will decide to select union representation„particularly after they have heard both sides of the story. In addition, the wealth of labor protective legislation that has occurred over the past forty years has diminished the market for union representation.
    I also discussed the NLRB's grant of review in Dana/Metaldyne, reaction to which has been overblown. The NLRB merely granted review on a limited issue: whether bar quality should attach to a recognition pursuant to a neu-trality/card check agreement. The legality of voluntary recognition in general is not raised by that case. Moreover, Dana/Metaldyne should be assessed in terms of the six-eight cases decided by the Clinton Board, all of which frustrated employee attempts to seek an NLRB election.
    In terms of the interesting study, the preliminary results of which have been presented, it strikes me as somewhat odd that employees can be asked, and indeed answer, whether they believed they had enough information in connection with a neutrality¿card check procedure. The essential point is that part of the story was not told. It would take, I submit, a great deal longer period of time after the vote for employees to come to realize that they did not, in fact, have a sufficient amount of information. In addition, I noted that the issue of nonachievement of first contracts after an NLRB election is a matter of concern, but I was heartened by the preliminary results of the study, which show that this occurrence is not as frequent as is typically stated.