Board Rejects Challenge to Voluntary Recognition Agreements

January 13, 2011 by Beeson Tayer & Bodine

In a long-anticipated decision the NLRB has rejected a conservative challenge to voluntary recognition agreements. Dana Corp., 356 NLRB No. 49 (2010).

The Board confronted the issue of whether an employer that enters into a voluntary recognition agreement that contains some substantive contract terms, terms that are contingent on the union demonstrating majority support to a neutral, third party, has given unlawful support to the union.

In a 1964 case the Board had held that an employer granted unlawful support to a union when it negotiated an entire CBA with the union, the signing of which was contingent on the union’s achieving majority status.

In Dana, the employer and union did not negotiate an entire CBA, but instead only agreed on “certain principles that would inform future bargaining on particular topics,” future bargaining that was contingent on a verified showing of majority support. The agreement, for example, provided that any future CBA would not alter the company’s existing healthcarecost- sharing arrangements, and “must” include provisions for “flexible” compensation and mandatory overtime. The Board majority concluded that nothing about the agreement would suggest to employees that recognition of the union was a foregone conclusion, or that rejection of the union by employees would be futile.

While good news, this decision leaves open the question of what kind of CBA terms may be negotiated pre-recognition before the voluntary recognition agreement crosses the line and constitutes unlawful union support. The Board decided to “leave for another day the adoption of a general standard for regulating prerecognition negotiations between unions and employers.”

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