Unions and Employers Can Agree to Agree Before Employees Choose Union Representation

Written by Robert G. Brody on January 25, 2011

Last month, the National Labor Relations Board (the Board) issued yet another pro-union decision.  In Dana Corporation, 356 NLRB No. 49, the Board validated an employer’s pre-recognition agreement with a union.  A pre-recognition agreement establishes many of the terms of a future collective bargaining agreement even though the union does not yet represent the employees.  Pre-recognition agreements are often used when an employer has union representation at its other locations.  These agreements make it easier for a union to get recognized. 

Dana Corporation, the employer, and the United Auto Workers (UAW) entered into a pre-recognition agreement.  At the time they negotiated the agreement, no employees had signed union authorization cards.  The employer and the union agreed that there would be no strikes or lockouts; they agreed on the length of the contract, and the arbitration and grievance procedures.  They even agreed healthcare costs, attendance, flexible compensation and mandatory overtime would be covered by the contract.  General Counsel for the Board argued the employer violated the NLRA by “supporting” the union without the recognition of a majority of its employees.  Employers are not allowed to recognize a minority union. 

The Board rejected the General Counsel’s argument.  It found the employer did not unlawfully recognize a minority union, because the application of the entire pre-recognition agreement was conditioned on a majority of employees signing union authorization cards.  There was nothing in the agreement which denied the employees their right to choose whether or not to be represented by the UAW.  Ironically, although this pre-recognition agreement was enforced, the union was not able to get enough employees to sign authorization cards, and it was not recognized as a representative.

Proponents feel these agreements allow employers to assess how much it will cost if a union were to come into their company and whether the employer should bother spending money trying to fight the union’s campaign.  Others feel the agreements trample on the rights of employees to choose whether or not they want to be represented by a union.  Not surprisingly, the Board sides with the proponents. 

If you notice union activity in your business, you should contact labor counsel immediately.  Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More