産 業 關 係 硏 究

第16卷 第1號, 2006. 6, pp.43～68

ⓒ 韓 國 勞 使 關 係 學 會

産業關係硏究 제16권 제1호

The Doctrine of Exclusive Representation(Kenneth Glenn Dau-Schmidt and Ryan Hamilton Vann)

The Doctrine of Exclusive Representation in the United States: It’s Application, the American Experience and Implications for the Issue of Plural Unionism in the Republic of Korea

Kenneth Glenn Dau-Schmidt* and Ryan Hamilton Vann**

논문접수일 : 2006년 2월 3일, 심사의뢰일 : 2006년 3월 10일, 심사완료일 : 2006년 5월 25일

* Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University–Bloomington(the first author). kdauschm@indiana.edu.  Phone: (812)-855-0697.

** Candidate for Juris Doctorate, Indiana University–Bloomington(the second author), rvann@indiana.edu.  Phone: (812)-325-5143.

The question of whether to determine employee representation through exclusive representation or plural unionism is a one that touches on the fundamental issues of equity in bargaining power and promoting industrial peace in the development of a system of industrial relations. In this essay we examine the policy choice between a system of industrial relations based on exclusive representation and one based on plural unionism. We undertake this examination by presenting the American law and experience with respect to exclusive representation, and discussing the relevance of that experience to the question of plural unionism in the Republic of Korea.

▶ Keywords: Plural Unionism, Exclusive Representation, Comparative, Korea, United States

Ⅰ. Introduction

Although there is a wide diversity of labor laws among the industrialized democracies of the world, two common purposes behind these laws are the fostering of industrial democracy through collective bargaining and the promotion of industrial peace (Dau-Schmidt, 2000: 145-146). Certainly these are shared purposes behind the laws of the United States and the Republic of Korea. The “Findings and Policies” of the National Labor Relations Act (NLRA) states that “it is the policy of the United States” to encourage “the practice and procedure of collective bargaining...” and “practices fundamental to the friendly adjustment of industrial disputes...” 29 U.S.C. §151 (1988). Indeed, the defining purposes behind the passage of the NLRA have been identified as the fostering of equity in bargaining power between employers and employees through organization, and the promotion of industrial peace (Atleson, 1983: 111). Similarly, the right of employees to organize is guaranteed in the Korean Constitution, Article 33, while Korea’s Trade Union and Labor Relations Adjustment Act (TULRAA) is intended both to improve the economic and social status of workers through collective bargaining and to promote industrial peace and the fair resolution of industrial disputes (Kim, 2004: 137). For example, the TULRAA applies the principles of “good faith” and “sincerity” to collective bargaining and requires adjustment procedures such as mediation before an industrial action can be commenced. TULRAA, Article 30, Paragraphs 1, 2; TULRAA, Article 45, Paragraph 2.

The particular means by which people might try to foster industrial democracy and industrial peace may vary widely from country to country, however, from the economic perspective, there are only a few basic strategies to achieve these goals. In order to foster employee organization a country must keep the costs to employees of organizing low, relative to its benefits. To this end, most industrialized democracies prohibit employer discrimination on the basis of union affiliation and provide low cost means by which the employees can determine and designate their collective representative (Dau-Schmidt, 1992: 495). Moreover, the methods by which a given country might organize collective bargaining, and the remedies it gives to dissenting employees, can affect the success of collective bargaining as a means of representative industrial democracy. Promoting industrial peace, while still allowing the parties the freedom necessary for the private resolution of issues through collective bargaining, is a much more subtle problem. The government can’t simply prohibit industrial strife, unless it wants to replace collective bargaining with a system of adjudication of wages before neutral arbitrators. Strikes are the engine that drives collective bargaining. Never-the-less, experience and empirical research suggests that the government can minimize the amount of industrial strife by prohibiting certain destructive strategic behavior and by formulating the system of collective bargaining in such a way as to promote the parties’ ability to see and act on their own interests in cooperation (Dau-Schmidt, 1992: 484-485).

The question of whether to determine employee representation through exclusive representation or plural unionism is one that touches on both of these fundamental issues in the development of a system of industrial relations. Exclusive representation might improve a union’s bargaining power relative to the employer, helping to ensure that the employees can make meaningful contributions to collective bargaining. Exclusive representation can also simplify the problem of collective bargaining, promoting cooperation between the parties by focusing the employer’s attention on one set of employee representatives and discouraging strategic behavior by subsets of employees at the expense of overall cooperation. However, exclusive representation can also pose a barrier to employee organization, a problem that has plagued the American industrial relations system. It is undoubtedly easier for employees to organize in a plural system, on the basis of a few employees at a time, into a variety of labor organizations catering to their particular needs, than to muster a majority for one union as the exclusive representative of all employees in the relevant bargaining unit. Furthermore, lumping employees with disparate interests together in one unit with one representative can complicate the union politics of collective negotiations and leave minority interests unrepresented. Indeed, in the United States we have found it important and necessary that the grant of exclusive representation to a union be accompanied by a duty to “fairly represent” all employees in the designated bargaining unit.

In this essay we will examine the policy choice between a system of industrial relations based on exclusive representation and one based on plural unionism. We undertake this examination by presenting the American law and experience with respect to exclusive representation, and discussing the relevance of that experience to the question of plural unionism in Korea. In the first section we set forth the American law with respect to exclusive representation, including a brief over view of the American election procedure, the doctrine of the duty of fair representation and recent developments with respect to the recognition of minority unions and members only contracts in the United States. In the second section we discuss the American experience with the doctrine of exclusive representation. This section touches on the success of the doctrine of exclusive representation in promoting cooperative collective bargaining and the decline of employee organization in America. In the final section we discuss the relevance of the American experience the debate over plural unionism currently being undertaken in Korea. The United States is an interesting case study on the question of the advantages and disadvantages of exclusive representation because no other country has as formal a system for determining questions of representation or clings so closely to the doctrine of exclusive representation. On the other hand, because our unions traditionally organize along craft lines, and we allow multiple bargaining units within one employer, Americans have a wealth of experience with the problems of collective bargaining with more than one union in a given enterprise. Indeed in my own experience I have represented a union that was one of nine independently and simultaneously bargaining with the same employer.

II. The American System of Exclusive Representation

1. The Law of Exclusive Representation in the United States

The system of exclusive representation in the United States is governed by the NLRA, which contemplates a system of collective bargaining between the employer on one side and a single union which represents the interests of all of the members of a bargaining unit on the other (Finkin, 2005: 4-5, 9). Of course, in the United States we allow organization on the basis of craft or other criteria into multiple units, so that while an employer may be bargaining with only one union with respect to particular employers, it is not unusual for American employers to be simultaneously bargaining with several “exclusive representatives” all of whom represent different cadres of the employer’s workforce. Moreover, in the United States, it is possible, with the consent of all parties, to have collective bargaining on a multi-employer basis, a “coordinated” multi-union basis or a minority union “members only” basis. There is currently no general provision for works councils or non-union elected employee representation committees under American law.

Section 9(a) of the NLRA provides that “[r]epresentatives designated or selected . . . by a majority of the employees in a unit . . . shall be the exclusive representative of all of the employees in such unit for the purposes of collective bargaining . . . .” National Labor Relations Act (hereinafter “NLRA”), 29 U.S.C. § 159. Although exclusivity is not specifically defined inthe NLRA, courts and the National Labor Relations Board (NLRB), the government agency charged with enforcement of the NLRA, have interpreted the section to mean that, where a union has been designated as the representative by the majority of employees in an appropriate unit, only that union has the authority to bargain with the employer concerning wages, hours and other terms and conditions of employment for the employees in that unit (Getman et al., 1999: 117). Further, the system of exclusive representation requires the elected union to represent all employees in the bargaining unit, including those who did not vote in favor of the union and even those who are not union members. As a result, once a union is elected and recognized as the exclusive representative of a unit of employees, the employer is prohibited from dealing directly with employees concerning terms and conditions of employment (Finkin, 2005: 6). Importantly, the employer retains the right to discipline employees as long as that right is not relinquished in collective bargaining and the employer maintains the same policies of discipline that prevailed before the union arrived (Getman et al., 1999: 118). Individual employees also retain the right to petition their employer concerning grievances. Section 9(a) of the NLRA specifies that “individual . . . employees have the right . . . to present grievances to their employer without the intervention of the bargaining representative as long as . . . not inconsistent with the terms of a collective-bargaining agreement then in effect . . .” NLRA, 29 U.S.C. §159(a) (1976). However, if the collective bargaining agreement specifies that the union may institute a grievance on behalf of the employees, an individual employee is prohibited from addressing that grievance himself, and the employee is bound by the result reached by the union (Getman et al., 1999: 119).

To eliminate the possibility of the employer forming a “company union,” which would undermine the goal of independent employee representation, Section 8(a)(2) of the NLRA makes it illegal for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” NLRA, 29 U.S.C. § 158(a)(2) (1976). The term “labor organization” is broadly defined in section 2(15) of the NLRA as “any organization of any kind . . . in which employees participate and which exists for the purpose in whole or in part of dealing with employers concerning grievances, labor disputes, wages, . . hours . . ., or conditions of work.” NLRA, 29 U.S.C. § 152(15) (1976). In NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), the United States Supreme Court gave full effect to the broad language of sections 8(a)(2) and 2(15) holding that the employer’s system of employee committees set up to discuss workplace issues was improper under 8(a)(2) because these committees constituted a “labor organization” set up by the employer to “deal with” the employer concerning grievances, labor disputes, wages hours and other terms and conditions of employment. The National Labor Relations Board has suggested that employer sponsored committees would not violate section 8(a)(2) where the purposes of the committee is limited to achieving “quality” or “efficiency.” Electromation, Inc., 309 NLRB 990 (1992), enforced, 35 F.3d 1148 (7th Cir. 1994). However, on the whole section 8(a)(2) of the NLRA has posed a significant barrier to employer desires to set up employee committees for the purpose of communicating on subjects that are the traditional province of collective bargaining. By prohibiting such committees, the NLRA ensures that the union will have the sole right to bargain on behalf of the employees it represents concerning conditions of employment.

Of relevance to the debate over plural unionism in Korea, section 8(a)(2) of the NLRA prohibits employer “support” of “labor organizations.” Common forms of illegal support under section 8(a)(2) include: any direct financial contribution by the employer to the union, payments made by the employer to non-employee union officers and the use of company resources or facilities when that benefit is bestowed on only one union among competing unions (Getman et al., 1999: 345). Although the payment of wages to employee union members for time spent on union business is not a per se violation of section 8(a)(2), the use of company time and resources in the furtherance of union business can help establish unlawful support or domination when considered in the totality of the circumstances. Coamo Knitting Mills, 150 NLRB 579, 582 (1964). The Board and courts have recognized a distinction between “cooperation” between labor and management “which does not have the effect of inhibiting self-organization and free collective bargaining” and unlawful support and domination. Federal-Mogul Corp. v. NLRB, 394 F.2d 915, at 917 (6th Cir. 1968). If the Board or a court finds that the employer has unlawfully supported a labor organization, they will enjoin that support, and if the Board or a court finds that the employer’s control of the labor organization arises to domination of the organization, they will order the disestablishment of that organization (Hardin, 2001: Ch. 8, Section VIII).

To ensure that collective bargaining actually occurs between the employer and the union, NLRA Sections 8(a)(5) and 8(d) require employers to bargain with the exclusive representative of the employees “in good faith” over wages, hours, and terms of employment. The obligation to bargain in good faith carries with it an obligation for the employer to share with the union all information that the union needs to perform its responsibilities as the exclusive representative of the employees in negotiating and enforcing the collective bargaining agreement. Generally, the information that the employer must share with the union includes what is known as “wage data.” This category includes information that is presumptively relevant in the bargaining context, such as information about current employees, including wages, hours of work, and conditions of employment, all of which will allow the union to compute the total cost of a proposed bargaining agreement for an employer. However, in certain circumstances, the employer must share other information that is not presumptively relevant if the employer makes it an issue of bargaining. A good example is NLRB v. Truitt Manufacturing Co., 351 U.S. 149 (1956), in which the employer claimed that a wage increase would cause the company to close because it could not bear higher costs (Dau-Schmidt, 2005). The union demanded to see financial information from the employer supporting such a claim and the employer refused. The Supreme Court held that although such financial information is not presumptively relevant for bargaining purposes, since the employer raised the issue, the union was entitled to see the information. Other information that may qualify as not presumptively relevant but which must be shared if the employer makes it an issue includes information concerning financial statements of the company, profit margins, and information about employees that are not included in the union’s bargaining unit.

Section 8(a)(5) establishes that it is an unfair labor practice to refuse to “collectively bargain” with the exclusive representative of the employees. Section 8(d) defines “collectively bargain” as a bargain in “good faith” over wages, hours, and working conditions.

2. The American System for Selecting Exclusive Representatives

There are two primary ways under American labor law for a union to establish itself as the exclusive representative of a bargaining unit. The first and least complicated method is voluntary recognition of the union by the employer. However, for an employer to do so, the union must have majority support from the members of the bargaining unit, or the employer’s voluntary recognition may be an unlawful interference in the union election process (Hardin, 2001: 680). To ensure that the union has majority status, the most common practice is what is known as a “card check.” To perform a card check, the union passes cards out to bargaining unit employees and the employees sign and return the cards if they would vote for the union as exclusive representative in an election. The union then presents the signed cards to the employer so that the employer can verify that the union does in fact represent the majority of the employees in the bargaining unit. At that time, the employer can choose to voluntarily recognize the union as the exclusive bargaining representative of the unit and begin the process of collective bargaining, or deny voluntary recognition and force the union to petition for an election.

The second method for a union to establish itself as the exclusive representative of a bargaining unit is by election. The first step to begin a union election is for the union to file a petition with the NLRB that is supported by “a substantial number of employees,” NLRA, 29 U.S.C. § 159(c)(1), which the Board defines as at least 30 percent (NLRB, 1976). The petition includes information concerning the employees included in the bargaining unit and those not included. The proof of interest is typically shown with authorization cards that are signed and dated, and then submitted with the petition. Werman & Sons, 114 NLRB 629 (1955) (holding that cards must be dated to show adequate interest to satisfy Section 9(c)(1) of the NLRA). If two or more unions have made a sufficient showing of interest on the part of the employees, they can all stand for election. If the employer refuses to voluntarily recognize the union, the election will proceed. The employer may dispute the majority status of the union or the bargaining unit the union has described by appealing to the NLRB, or ultimately to the federal courts.

To constitute an appropriate bargaining unit, there must be at least two employees who share sufficient “community of interest” to be grouped together for the purposes of collective bargaining. Factors that indicate community of interest include: “(1) bargaining history in the industry, as well as with respect to the parties before the board; (2) similarity of duties, skills, interests, and working conditions of the employees; (3) organizational structure of the company; and (4) the desires of the employees.” (Hardin, 2001: 590). Accordingly, sub-sets of an employer’s employees can be organized separately by different unions on the basis of trade, bargaining history, similarity of duties, similarity of conditions of employment, or merely the desire of the employees. Additionally, there are some categories of employees that cannot be included in a bargaining unit, or can only be included if they vote for inclusion. For example, security guards may not be included in a bargaining unit with other employees, and any organization representing guards cannot be affiliated with a union representing the other employees. NLRA, 29 U.S.C. §159(b)(3). Professional employees can only be included in a unit with other employees if a majority of those professionals vote for inclusion in the unit. NLRA, 29 U.S.C. §159(b)(1).

Once an appropriate unit is determined, a date for an election will be set by the NLRB. The employer and the union then have an opportunity to campaign for votes. However, there are particular rules that govern what both parties may say and do throughout the campaign period. The goal of the election is to maintain “laboratory conditions” throughout the entire process, which is to say that the results of the election should be a true reflection of the desires of the employees. General Shoe Corp., 77 NLRB 124 (1948). To maintain “laboratory conditions,” certain campaign tactics are prohibited (Getman et al., 1999: 70). For example, company managers are prohibited from calling individuals or small groups of bargaining unit members into offices or conference rooms to encourage voting against the union, regardless of what was actually said. General Shoe Corp., 77 NLRB 124 (1948). Allowing such behavior would cause too much coercion on the employees to vote against the union. For the same reason, company officials are prohibited from visiting individual employees at their homes. Peoria Plastic Co., 117 NLRB 545 (1957). The NLRB will also set aside an election for either party’s use of campaigns that appeal to racial prejudice. Sewell Mfg. Co., 138 NLRB 66 (1962). The company is permitted to use company time to present campaign information and to require attendance at such events, even without granting the union equal time to respond. NLRB v. United Steelworkers of America 86 (NuTone), 357 U.S. 357 (1858). However, to achieve laboratory conditions, the employer is prohibited from making any speech to a large group of employees on company premises within 24 hours of the election. Peerless Plywood Co., 107 NLRB 427 (1953). Unions are prohibited from engaging in campaigning that interferes with company production. However, employee members of unions are permitted to campaign in common areas where employees are not on company time, such as break rooms and company parking lots. The most common form of union campaigning is by distributing leaflets.

After the campaign period, the election is conducted on the date set by the NLRB. The election may be held on company time if the employer approves, otherwise it must be held on the employees’ own time (Hardin, 2001: 548). The election is held at a time that interferes as little as possible with the workday, and the polls must stay open long enough to ensure that all employees have a chance to vote. The election is normally conducted on company property. The election is conducted by secret ballot, provided by the NLRB, and only the voter and the Board agent are permitted to handle a ballot. NLRB Casehandling Manual ¶11306. Additionally, no campaigning is permitted near the voting booths, and elections may be set aside if such campaigning occurs. When the voting is concluded, a union becomes the exclusive representative of the bargaining unit only if it receives a majority of the votes. Otherwise, the employees remain as their own representatives to bargain individually with the employer over wages, hours, and other terms and conditions of employment. If a union loses an election, it is prohibited from petitioning for another election in the same bargaining unit for a period of one year. However, if the union prevails and is certified by the board, the employer must bargain with the union as the exclusive representative of the employees for at least one year of “good faith bargaining,” and for the term the collective bargaining agreement, up to three years, if a contract is signed (Getman et al., 1999: 35).

Violations of campaign and bargaining procedures are known as unfair labor practices (ULPs). Some examples include: threats by the employer to shut down the plant if the union is elected; refusals to bargain in good faith; coercion before elections; threats of violence by either party; discrimination by the employer on the basis of union affiliation; purposeful “slow-down” in production by union employees; and employer speeches less than 24 hours before a scheduled election. To obtain a remedy for a ULP, the injured party must file a charge with the NLRB. If the ULP occurred during or immediately before a scheduled election, the Board may set aside the results of the election and rerun the election on another date. NLRB Casehandling Manual, Pt. 2, Representation Proceedings, ¶ 11436. The Board will typically rerun the election as soon as possible, except in two circumstances: “(1) where there is a concurrent unfair labor practice case pending against a party, or (2) where a party has been found guilty of unfair labor practices that must be remedied before the election is rerun.” (Hardin, 2001: 495). If a ULP occurs after a union is already established as the exclusive representative, the Board typically orders the party responsible for committing the ULP to rectify the situation. For example, if one party is refusing to bargain in good faith, the Board may issue a bargaining order that requires the parties to bargain. Similarly, if an employer illegally fires a worker for participation in a union, the Board may order the employer to rehire the employee and pay the employee back pay for the time spent out of work.

3. The Duty of Fair Representation

As previously mentioned, under the doctrine of exclusive representation, the union represents all employees in the relevant bargaining unit with respect to the negotiation and enforcement of their employment contract rights. This gives the union extraordinary power over the rights of employees who may be members of a minority group or who may not support the union. In order to limit the union’s power as exclusive representative, and prevent abuses, the United States Supreme Court has found implied in the grant of authority as exclusive representative the obligation to fairly represent all employees in the bargaining unit.

The duty of fair representation was first found by the Supreme Court in the case of Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944). In that case, a union of railwaymen had negotiated a collective bargaining agreement that prevented Black workers from being promoted to engineer. The Supreme Court found that Congress must have intended the grant of authority of exclusive representation to the union to include a duty to fairly represent all of the members of the bargaining unit, otherwise the grant of authority would raise serious constitutional questions. Although the Steele case dealt with representation under the Railway Labor Act, the Supreme Court held in Vaca v. Sipes, 386 U.S. 171 (1967) that the NLRA also imposed a duty of fair representation on unions that are designated as the exclusive representative. In addition to the courts, the NLRB has established that a union’s failure to comply with the duty of fair representation amounts to a ULP. Miranda Fuel Co., 140 NLRB 181 (1962). In Vaca, the Court found that the duty of fair representation is breached when the union’s representation is “arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 207. At a minimum, it is clear that the duty of fair representation includes the obligation not to discriminate on the basis of race, gender, religion or national origin. However, courts have gone beyond this standard in finding a duty of fair representation. It is well accepted that recklessness or gross negligence with regard to the enforcement of an employee’s rights does not meet the duty of fair representation. However, mere negligence in representation does not constitute sufficient grounds for a union’s breach of the duty of fair representation. Air Line Pilots V. O’Neill, 499 U.S. 65 (1991).

4. Minority Unions and “Members Only Contracts” in the United States: A Recent Resurgence of Interest

Although it is seldom used currently, members-only non-majority bargaining can legally occur in the United States, so long as a majority union has not been certified as the exclusive representative of a particular bargaining unit (Morris, 2005). Under Section 7 of the NLRA, “[e]mployees shall have a right to . . . bargain collectively through representatives of their own choosing.” (Morris, 2005: 710-711). That right is only limited by section 9(a), which gives the bargaining rights to an exclusive representative if such representative is elected by a majority of the workers in the bargaining unit. In fact, the formation of members-only unions was a common practice 50 years ago in the United States, and those unions were considered a first step in developing a majority representative for the bargaining unit (Morris, 2005: 711).

Professor Charles Morris has recently advocated a renewal of interest in minority union members-only collective bargaining in the United States as a way of rejuvenating the flagging American labor movement (Morris, 2005). A “members only” campaign can be conducted without the burdensome election procedure, and without even notifying the object company. Such campaigns are less likely to face opposition from the company, and the union can convince others to join based on performance for its members instead of mere promises, so it is easier to persuade workers to join the union. Once the union membership grows large enough to commanda majority in a particular workplace, the union can petition the NLRB to become the exclusive representative of the bargaining unit. The collective action of employees who are members of minority unions is protected under the NLRA, although it is unclear whether the employer has an obligation to bargain with a minority union. Professor Morris argues that such an obligation exists in the current law (Morris, 2005: 715). However, Professor Finkin argues we would have to amend the current law to insure an obligation on employers to negotiate with minority unions (Finkin, 1993).

III. The United States’ Experience with Exclusive Representation: the Decline of the American Labor Movement

The United States adopted its system of exclusive representation after decades of exhaustive debate of the relevant issues (Finkin, 1993). Organized labor favored a system granting it the right of exclusive representation as a way of consolidating employees’ bargaining power and preventing defections through individual bargaining or employer controlled “company unions.” (Finkin, 1993: 218). As a result, the doctrine of exclusive representation and the prohibitions of section 8(a)(2) became the bedrock for organizing our system of industrial relations (Finkin, 1993). The NLRA’s system of elections was seen as fair and a relatively easy means of organization as compared with the disruptive and sometimes violent organizing strikes of the day (Reuther, 1978).

For a time, this system of formal elections and exclusive representation seemed to work well for the United States. In the 1930's, 40's and early 50's, after the passage of the NLRA, employee representation in unions increased from 13.7% of private sector employees in 1936 to 35.7% in 1953 (Labor Research Association, 2002). Indeed, largely by organized labors’ own choosing, the NLRA’s system of elections and exclusive representation supplanted the mixed system of employee representation that included minority unions and members-only contracts that existed in the United States at the time of the passage of the NLRA (Morris, 2005: 710-711). However, since its zenith in 1955, the percent organized in the private sector in the United States has declined until now it stands at less than 8% (Bureau of Labor Statistics, 2005). Although there are many reasons for this decline, including demographic changes, changes in technology, increased pressure from international trade and employer resistance to organization, it seems safe to assert that our election procedure and the doctrine of exclusive representation have significantly contributed to this decline (Wheeler, 2002: 3-14, 25-33). Most proposals for reform of the NLRA include a major revision of our system of exclusive representation including minority union representation, employee participation committees, relaxation of restrictions of section 8(a)(2) and simplification of our system of elections (Weiler, 1990: 229-230; Finkin, 1993; Morris, 2005: 710-711).

The doctrine of exclusive representation has proven no guarantee of bargaining power for American unions. Through a series of cases, the United States Supreme Court has limited unions’ ability to compel financial support from bargaining unit members despite clear language in the NLRA allowing union security clauses (Dau-Schmidt, 1990). Moreover, the Court’s adherence to theories of individual rights on questions concerning allowable union sanctions for employees who cross picket lines or legal remedies against employers who induce breaches in solidarity, has weakened the American labor’s ability to encourage or compel solidarity in job actions (Finkin, 1990). Of course, good standing in union membership may allow an employee to feel more secure in his or her dealings with the union, and qualify the employee to participate in union elections. In the construction industry where union hiring halls are allowed, membership in good standing may be a significant in securing future employment. NLRA, 29 U.S.C. §158(f). To the extent that it is important to an employee to maintain his or her union membership in good standing, the union leadership will be able to compel or cajole support for union positions. However, at least in the context of American individualism, it seems doubtful that there are many industries in which the exclusive representative can compel much support or bargaining power beyond what the employees voluntarily lend to the union through their energy and enthusiasm. The failure of American unions to achieve first contracts in approximately half of the elections they win suggests that the grant of exclusive representation is a grant of union responsibility without any necessary associated grant of bargaining power (Weiler, 1990: 40).

The doctrine of exclusive representation holds some potential benefits for encouraging cooperation in the process of collective bargaining. Exclusive representation simplifies the employer’s bargaining problem, at least with respect to the covered employees (Dau-Schmidt, 2004: 222). Although within the American context, an employer’s employees may be organized in multiple units, each represented by a different union, at least in discussing the concerns of a given group of employees the employer will only have to deal with one union that can speak with a unified voice. Differences among the employees in a bargaining unit can be resolved through union politics rather than at the bargaining table. The doctrine of exclusive representation prevents recalcitrant employer strategies of undermining union negotiations through individual agreements or special deals with sub-sets of favored employees. Moreover, to the extent that exclusive representation limits the number of parties to negotiations, it discourages strategies by which subsets of employees might hold out for greater concessions, free-riding of the cooperation of the employer and the majority of employees in negotiating the collective agreement. Empirical studies demonstrate that, limiting the number of parties to a negotiation simplifies the bargaining problem and increases the chance of a cooperative solution (Dau-Schmidt, 1992: 485).

Because we allow multiple bargaining units within one employer, the American experience includes bargaining strategies in which one side tries to capitalize on the fact that the other side is not organized over all of the relevant economic parties. One such bargaining strategy is known as “whip-sawing” in the American industrial relations community. Under a whip-sawing strategy, the employer goes back and forth between two bargaining units of employees competing within the employer for work, wringing concessions with each round of bargaining (like the blade of a saw going back and forth to cut away wood). Employers have also been known to engage in “sweet-heart” deals, granting superior concessions (or even bribes) to favored union leaders who the employer views as more compliant and willing to sacrifice the employees’ long-run interests to the benefit of the employer. Bargaining units of employees can also engage in “whip-sawing” by selecting the same union to represent them and then going back and forth between competing employers to wring concessions on the threat of being shut down while the other employer is operating. Another bargaining strategy that thwarts cooperative bargaining is known in the American industrial relations community as “leapfrogging.” Under this strategy, the representatives of a sub-set of employees waits for the unions representing the other employees of their employer to cooperatively conclude negotiations, and then demands an even better settlement on the threat of closing the employer down and wasting the value of the employer’s cooperative agreement with the other employees. This strategy is particularly useful to the leaders of the recalcitrant union in maintaining their elect-ability and gaining new members because they can always truthfully claim that they negotiate the “best” deals with that employer. Of course, if all of the representatives of sub-sets of employees with a given employer hold out to get the best treatment then there will be no cooperative bargaining and the parties will always end up in a strike.

A bakery truck local I used to represent, Teamsters Local 50 in Detroit Michigan, used this strategy to great effect. They represented all of the bakery truck drivers in the Detroit area and would alternate bargaining with several area bakeries. None of the bakeries wanted to be the only bakery shut down for fear of losing market share.

A Local Union President I used to represent, Elton Shade, built his reputation among the Detroit newspaper workers as the “best” Local President in precisely this manner.

Although all of these recalcitrant strategies are used in American industrial relations, and any industrial relations expert can recount you instances in which he or she has seen them in action, they are not generally considered a systematic flaw in our system of collective bargaining. The reason why these are not considered big problems is that, the remedy to these recalcitrant bargaining strategies is fairly clear and available to any party with enough bargaining power to compel the solution. If unions want to avoid employer whip-saw tactics or sweet-heart deals, they need to organize on a multi-enterprise level or insist on coordinated bargaining in which representatives of all of the affected bargaining units negotiate with the employer at the same time. If employers want to avoid union whip-saw tactics or leapfrogging, they need to insist on multi-employer bargaining or coordinated bargaining so that they negotiate with all of the economically relevant parties at the same time. It is true that parties that do not have enough bargaining power to determine the conditions of negotiations can suffer from these strategies for extended periods of time. However, if a party has that little bargaining power, it is not clear what they would achieve through collective bargaining even under ideal circumstances.

This was precisely the remedy the Detroit area bakeries and newspapers eventually achieved in the examples of Teamster Local 50 and Elton Shade recounted in the preceding footnotes.

The American system of elections to determine bargaining representatives has proven a bit of a disappointment. Far from being a fair and efficient way to choose employee representatives, our election procedure is now viewed by many industrial relations experts as a costly procedure that invites employer intimidation of employees through discriminatory discharges and other ULPs (Weiler, 1990: 229-230). Our election process can drag on for years, resolving questions of relative insignificance to whether the employees want to be represented by a union. On this count, the case of Continental Web Press, Inc. v. NLRB, 742 F.2d 1087 (7th Cir. 1984), in which the Board and courts took approximately a half of dozen years to determine the appropriate bargaining unit for employees who had voted decisively for a union, is instructive (Finkin, 1993: 201-202). Moreover, during the period from 1970 to 1980 the number of charges filed in the United States based on employer discrimination during an election campaign increased from 9,290 to 18,350, while the number of election petitions declined from 7,773 to 7,296 (Weiler, 1983: 1780). The fact that a grant of exclusive representation with a presumption of continuing majority status turns on the election, makes it a momentous and risky proposition for employees with no experience with the candidate union. Arguably, a simple system of registration for the selection of a bargaining representative would be less burdensome and intimidating (Weiler, 1990: 39-40, 231-232). To its credit, our system of elections allows ample opportunity for the employer to present any case against employee organization, and undoubtedly some useful information is conveyed to the employees in this process. However, it is argued that such useful information could be conveyed to the employees by the employer without the need for a lengthy and costly election campaign. One measure of the failure of our current method of selecting bargaining representatives is that unions currently win only about a third of representation elections, and represent less than 8% of employees in the private sector, despite polls that show that a majority of American workers would like some form of representation in the workplace (Freeman, 1999).

There has also been recent criticism of our system of exclusive representation as a system of representative industrial democracy. Our system affords some opportunity for competition among unions to respond to the needs of employees. American election procedures allow for the possibility of multiple unions competing for the same employees and allow at least the possibility that encrusted incumbent unions might be ousted by attendant insurgent unions in decertification elections. Moreover, the American practice of organizing unions on a craft or industrial basis has lent itself to competition among unions to meet the needs of workers on the basis of “appropriate bargaining units” that are organized on a scale well short of an entire enterprise or industry (Yamakawa, 1995: 383). Thanks to the limitations of section 8(a)(2), employer payments to union members have not imposed a significant burden on American industry or posed a likely means for undermining the independence of American unions. Moreover, our duty of fair representation affords minority and non-union employees a remedy for at least the most egregious of abuses of majority power. However, a consensus seems to be building among American industrial relations experts that our system is too costly and inflexible for workers competing in a fast-paced global economy. Although a necessary check on majority power in any system of exclusive representation, suits by dissenting and minority employees for failure to fairly represent them have proven very costly and troublesome for American unions. Professor Finkin has also argued that our system of elections and representation is too inflexible to meet the needs of modern workers who are more transient and diverse in their needs. Our system fails to adapt quickly to the needs of insular minorities of different backgrounds or skills and contingent workers who may be with a particular employer only a short time (Finkin, 1993: 217-218). Professor Finkin has likened industrial democracy in the American system of exclusive representation to “democracy” in a one-party state (Finkin, 1993: 211; Summers, 1984).

These suits are also burdensome to the company because they generally take the form of a suit against the union for failure to fairly represent and a suit against the employer for breach of contract or violation of the law. Duty of fair representation suits usually present a curious state of affairs in which the union and the company are allied in defense against an individual employee or a group of employees.

As previously stated, most proposals for reform of the NLRA to address the decline of American unions include some limitation or modification on our system of elections and exclusive representation. Professor Paul Weiler has argued that our system of elections should be replaced by a system of card checks or “instant elections” that will take no more than two weeks (Weiler, 1990: 41-42, 253-254). He has also argued that the restrictions of section 8(a) 2 of the NLRA should be relaxed to allow more employee representation through employer sponsored committees and that the United States should adopt a system of Employee Participation Committees, analogous to the German Works Councils, to supplement our system of collective bargaining (Weiler, 1990: 33-34, 44, 217-218, 283-285). Professor Matthew Finkin has argued that a system of plural unionism with minority representation would better serve the purpose of American labor law of promoting employee representation and collective bargaining (Finkin, 1993; Schatzki, 1975). Professor Charles Morris maintains that legislative authority and precedents exist for American unions to undertake, and once again embrace, a new wave of employee organizing based on minority unions and members-only contracts without the burden of NLRA election campaigns (Morris, 2005: 710-711). Professor Morris argues that, not only do American employees have a right to organize in minority unions, but American employers have an obligation to bargain with minority representatives (Morris, 2005: 716).

IV. The Implications of the American Experience for the Issue of Plural Unionism in Korea

The Republic of Korea is currently involved in a public policy debate over how to structure their system of collective bargaining with plural unionism. The issue has been tied, both practically and politically with the issue of employer payment of wages for full-time union officials.

In the fall of 1996, upon joining the Organization of Economic Co-operation and Development (OECD), the Korean government committed to under-taking certain labor law reforms, including allowing plural unionism (OECD, 2005). The revised 1997 Trade Union and Labor Relations Adjustment Act (TULRAA) allowed the formation of competing unions at the national and industry levels, but granted a five year grace period before plural unions would be allowed at the enterprise level in 2002. The prohibition on competing unions at the enterprise level is particularly significant, since in Korea most organization and collective bargaining takes place on the enterprise level (Lee, 2004: 84). The TULRAA also prohibited the payment of wages to full time union officials by employers, but again granted a grace period of five years to coincide with the lifting of the ban on plural unions at the enterprise level. However, despite the passage of the TULRAA in 1997, the issue of industrial relations reform remained in the forefront of Korean policy debate because of the decline of the Korean economy in what has been referred to as “International Monetary Fund (IMF) crisis of 1997. “This crisis gave impetus not only to the importance of labor rights reform, but also to the importance of promoting labor market flexibility in a Korean economy dominated by long-term or even “life-time” employment (Kim, 2004: 134-135). Soon thereafter, representatives of labor, management and the Korean government formed the Tripartite Commission in order to develop a national consensus for amending Korean labor law to enhance labor rights, improve the labor relations system and overcome the economic crisis. In the wake of the acceptance of an IMF plan for economic recovery by the Korean government, in February of 1998 the Tripartite Commission reached an historic consensus among labor, management and the government on labor law reform designed to improve labor market flexibility and institute labor rights measures consistent with the commitments made to the OECD and the IMF.

The key agreements of the Tripartite Commission included: a guarantee of basic labor rights to public officials and teachers; a guarantee of the right of the unemployed to join labor unions; legalization of layoffs for “managerial reasons;” protections for “dispatched” or laid-off workers; expansion of the Employment Insurance Act; and “livelihood protection” for workers who have accumulated wage arrears (Kim, 2004: 139).

In 2001, the Tripartite Commission considered the impending expiration of the five year grace period under TULRAA against plural unions at the enterprise level and the prohibition of employer payments to union officers and recommended that the government grant another five year grace period before these provisions would be enforce, so that neither change will take effect until January 2007 (OECD, 2005: 10). This additional grace period was granted by the government largely at the behest of Korean employers, who feared that competition between rival unions in collective bargaining would be disruptive to industrial relations. The extended grace period against plural unions was linked to a postponement of the prohibition on payments to union officials by employers as a concession to labor (OECD, 2005). To minimize strategic behavior and ensure that negotiations were conducted in a reasonable manner, the TULRAA was also amended to provide that the Minister of Labor would specify procedures to establish a “single channel” of bargaining for employers with plural unions by December 31st, 2006. Concern that provision be made for a “single channel” for bargaining were raised by the fact the right to organize and collectively bargain is guaranteed in the Korean Constitution, Article 33, and so employers would have a constitutional obligation to bargain with all unions that represent their workers. The International Labor Organization (ILO) has determined that both the current prohibition on plural unionism and the future prohibition on employer payment of union officer wages do not conform to international norms and practices.

The prohibition on plural unionism violates ILO Convention 87 on Freedom of Association and ILO Convention 98 on the Right to Organize and Bargain Collectively. ILO, 324th Report of the Committee on Freedom-of-Association (Geneva, 2001). The ILO’s Freedom of Association Committee has repeatedly argued that the payment of union officers for time worked by employers is a matter that should not be subject to legislative interference. ILO, 309th Report of the Committee on Freedom-of-Association (Geneva, 1998); ILO, 324th Report of the Committee on Freedom-of-Association (Geneva, 2001); ILO, 335th Report of the Committee on Freedom-of-Association (Geneva, 2004).

The Tripartite Commission has continued its process of developing national consensus in public policy with respect to labor-management relations and developed a “roadmap” for Korean labor law reform, including plural unionism. This roadmap currently assumes that plural unions will be allowed at the enterprise level in January of 2007 and that, by then, the National Assembly will pass supporting legislation clarifying the bargaining model in the presence of multiple unions. The roadmap proposal for plural unions is that, regardless of the number of unions that represent the workers in an enterprise, there should be just one “channel” for collective bargaining. The trade unions themselves will decide whether collective bargaining in that channel will be undertaken by the majority union or a joint team under proportional representation. Should the unions fail to agree on majority or joint representation, the statute will provide a default procedure (OECD, 2005: 10-11). The roadmap also envisions that the prohibition on employer payments to union officers will go into effect in January of 2007.

The debate over plural unionism in Korea includes many of the same issues as the debate over exclusive representation in the United States. There is concern that the system of conducting collective bargaining can affect both the productiveness of collective negotiations and the responsiveness of Korean unions to the needs and interests of workers. Korean employers resist plural unions because they fear some of the recalcitrant bargaining strategies such as “leapfrogging” that have been experienced in American industrial relations. The payment of significant amounts of money to union officials by employers pursuant to union agreements is a complicating factor with which we Americans have little experience. On the other hand, some Korean union leaders favor plural unions at the enterprise level as ameans of better meeting the needs of Korean workers, particularly contingent workers or workers with different interests or skills than those of the majority of the workers in the enterprise. Union leaders see the payment of wages to union officers by employers as a means of recouping the cost of industrial democracy in a way consistent with practices in other OECD countries. There is also some concern that such payments will undermine the independence of union leaders.

An agreement for the payment of union officer wages by employers is a common practice among OECD countries. Japan is the only other OECD country to ban the practice.

Based on the American experience, I would say that Korea’s move to plural unionism will be good for industrial democracy in Korea. Under our system of exclusive representation, the interests of minority employees suffered in the absence of the duty of fair representation. One foundational lesson of the American experience is that, no matter how progressive or well intentioned your labor movement may be, if unions are given exclusive authority over the bargaining rights and responsibilities of employees, there will be abuses of power at the expense of employees with different interests or backgrounds than the majority of employees in the unit. The right to sue for failure to fairly represent in American law allows redress for the worst abuses of such power and, at a minimum, the American experience suggests that Korean workers need a similar right to sue for abuses of union power. However, this system of addressing abuses of power through duty of fair representation suits is costly and time consuming. Of late, American scholars have been talking about minority union representation and plural unionism as a superior remedy for the abuse of union power (Finkin, 1993; Morris, 2005). Aggrieved dissenting employees can register their dissatisfaction with a union by quitting and joining an alternative union. Moreover, it is argued that a system of industrial relations which includes minority or plural unions will be better at affirmatively representing minority worker interests, contingent worker interests and responding to the fast changing needs and interests of workers in the global economy (Finkin, 1993; Morris, 2005). Certainly it is true that the American labor movement has floundered, in no small part due to the rigidity and cost of our current system based on exclusive representation. The OECD’s and ILO’s endorsement of plural unionism helps to confirm that this is probably the best system for ensuring industrial democracy for developed countries.

The American experience also confirms that the Korean government and the Tripartite Commission are wise to advocate a “one channel” solution for collective bargaining in the presence of multiple unions. As recounted in the section on the American experience, there are numerous recalcitrant strategies for bargaining in pluralistic situations, including “whip-sawing,” “sweat-heart deals” and “leapfrogging,” the solution to all of which is to bring the economically relevant parties together in one collective negotiation. A useful insight that might be gleaned from the American experience is that sometimes there are economically relevant parties outside of the enterprise that must be included in the negotiations. To the extent that unions in Korea organize or coordinate efforts across enterprises, or employers coordinate efforts across enterprises, it may be desirable to encourage collective bargaining through channels that include more than one enterprise. Moreover, it may be that it is not necessary to have only one channel for all collective negotiations. Sub-groups of employees may have distinct interests and concerns, which is why they seek different unions for representation in collective bargaining. Some terms and conditions of employment that are vital to one group of employees may be entirely irrelevant to another group. It might make sense to require one channel for collective bargaining for shared terms and conditions of employment, or terms that have been historically identical across employees, while allowing separate negotiations between the employer and each recognized union over terms and conditions of interest only to each unions’ members. The successful navigation of this problem is all the more important for Korean workers and employers because the right to organize and collectively bargain is guaranteed in the Korean Constitution and thus all employee representatives have a constitutional right to effective voice.

A final insight from the American experience might be that, if given the opportunity, the parties themselves will eventually organize negotiations on a basis that avoids recalcitrant bargaining strategies. Recalcitrant strategies waste resources and in the long-run both labor and management have incentive to avoid such strategies and preserve the profitability of their firm. Although it may be safest for the Korean National Assembly to specify the default bargaining solution in the case that multiple unions cannot agree on the basis for employee representation in the one bargaining channel, the National Assembly may want to consider solutions in which the parties, including the employer, negotiate the appropriate basis for collective negotiations. Professor Matthew Finkin has proposed just such a bargaining solution for determining the conduct of collective bargaining in the case of multiple unions in the United States (Finkin, 1993: 205-206). Although there will undoubtedly be some strife, in the long run it is in both parties’ interest to find channels for successful collective bargaining and the Korean people can trust Korean unions and employers to usefully organize negotiations.

V. Conclusions

The formulation of a system of plural unionism with one channel bargaining is an issue of vital concern to Korean industrial relations. This single issue holds important implications for the effectiveness of the Korean labor movement, industrial democracy in Korea and level of industrial peace in Korean industrial relations. The Korean people have been wise to try to achieve consensus on this and other important issues of industrial relations policy through the use of the Tripartite Commission before consideration of these issues by the National Assembly and the President. The parties are also wise to consider the experience of other countries with these issues before crafting a solution that meets the needs of Korea.

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