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

Discussion

Wilma B. Liebman
National Labor Relations Board

    Unions increasingly are seeking to bypass the election procedures of the National Labor Relations Board (NLRB) and instead negotiate recognition agreements with employers. With the decline in union density, negotiated recognition is a critical element of the labor movement's strategy for survival and growth. Some employers have gone along. Many have resisted. To them, these agreements-and the union efforts to achieve them (e.g., numerous forms of corporate campaigns)-raise serious concerns. The debate over voluntary recognition is perhaps the most heated in labor law in years. Our symposium will address the legal and policy arguments for and against these private arrangements.
    We will highlight one labor-management partnership evolving from a voluntary recognition agreement, Tenant Health Care and the Service Employees International Union (SEIU). We will learn the preliminary results of an ongoing survey being conducted by Professors Adrienne Eaton, of Rutgers University, and Jill Kriesky, of Wheeling Jesuit University Appalachian Institute, of worker attitudes toward NLRB elections versus card check campaigns. We will hear scholarly observations from James Brudney, professor of law at Ohio State University, on the legal context of these agreements and whether they represent a changing paradigm in organizing workers. In addition, our two discussants, Charles Cohen, former member of the NLRB and partner Morgan, Lewis & Bockius LLP, and Andy Levin, director AFL-CIO Voice@Work Campaign, will comment on the presentations.
    Many unions have become disenchanted with the NLRB's representation case procedures. In their view, delays in the process, which may arise at any step after the representation petition is filed (pre- and postelection hearings, certification challenges before the NLRB and the court, and negotiation of an initial agreement), allow employers to engage in long and sophisticated campaigns to defeat unionization. As a result, some unions have switched their focus to negotiating recognition procedures, away from organizing to win NLRB elections. It is argued that this approach minimizes the acrimony that often follows bitter organizing campaigns and thereby smoothes the process of negotiating a first contract.
    Agreements for voluntary recognition vary enormously, but critical elements of most are provisions for employer neutrality during the organizing campaign and recognition of the union upon proof that it represents a majority of the employer's workers (e.g., card check). Some agreements allow the union physical access to employees it seeks to organize and/or a list of employees' names and addresses. Many include a code of conduct for both the employer and union during the campaign, imposing rules more stringent that those imposed by NLRB law and enforced by a private dispute resolution mechanism, typically an arbitrator. Many allow an arbitrator to decide prerecognition issues (e.g., the appropriate unit or unit inclusions and exclusions). Many provide for authorization card check procedures; some use private elections conducted by an individual in the community. Others are hybrid agreements, providing for a NLRB-conducted election, but otherwise private enforcement mechanisms.
    Unions have had success in achieving these agreements. A number of unions, such as the SEIU and UNITE/HERE, are organizing thousands, even tens of thousands, of workers under these extra-NLRB agreements. The current agreement between the United Automobile Workers (UAW) and the Big Three automakers contains provisions for neutrality and card check. With their success, of course, the opposition has accelerated. The Right to Work Committee, for example, has made this issue a centerpiece of their current strategy. They have sued the United Steelworkers Union in connection with its agreement with Heartland Industries, and they have backed cases filed with the NLRB involving Heartland and a number of other such agreements (e.g., those between the UAW and auto parts suppliers Dana Corporation and Metaldyne Corporation; see http://www.nrtw.org/b/nr_306.php). The NLRB has agreed to review the Dana/Metaldyne case (Dana Corporation, 341 NLRB No. 150 [June 7, 2004]). Although the grant of review raises a limited issue-whether a voluntary recognition agreement should bar for a reasonable period of time any decertification or rival union petitions-it has generated enormous controversy.
    The controversy has spread to Capitol Hill. Last session, two pieces of legislation to amend the National Labor Relations Act were introduced in Congress. One, the "Employee Free Choice Act," was introduced by Senator Kennedy (MA) and Congressman Miller (CA). The bill would require the NLRB to certify a union that provided authorization card proof of majority status. To facilitate the negotiation of initial collective bargaining agreements, it provides a timetable for negotiations, mediation, and binding arbitration if negotiations failed. Opposing legislation, the "Secret Ballot Protection Act of 2004," was introduced by Congressman Norwood (GA) and would outlaw voluntary recognition entirely. Although neither bill is likely to be enacted, together they reflect the deep policy divide that exists on this subject.

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