In Dana Corp, 356 NLRB No. 49 (December 6, 2010), the National Labor Relations Board (the “Board”) held that Dana Corporation and the UAW did not violate labor law when they entered into a Letter of Agreement (“LOA”) setting forth ground rules for additional union organizing, procedures for voluntary recognition upon proof of majority support and substantive issues that collective bargaining would address if and when Dana recognized the UAW at an unorganized facility. The Board found that Dana had not rendered inappropriate support to the UAW in violation of Sections 8(a)(1) and (2) of the National Labor Relations Act (the “Act”) and that the UAW did not impermissibly accept support in violation of Section 8(b)(1)(A) of the Act.

In the most important part of the decision, the Board announced that negotiations with a union over substantive terms and conditions of employment prior to the union’s attainment of majority support is not per se unlawful. Rather, some discussion with a union over “parameters” of subsequent collective bargaining is acceptable.

Applying this rule, the Board found that the LOA’s creation of a framework for future collective bargaining if the UAW were able to prove majority status by means of a card-check did not amount to pre-majority exclusive recognition and collective bargaining.

In sum, the Board determined that the LOA would not cause employees to believe that exclusive recognition of the UAW was a fait accompli, thereby interfering with employee choice. In reaching this decision, the Board emphasized that the LOA was reached at arms length without unfair labor practices, contained procedures for conducting the union campaign, provided a mechanism for determining majority support and merely highlighted the areas that collective bargaining would address. The LOA did not impact present terms and conditions.

The Dana Corp. decision is the latest evidence of the new Democratic majority of the Board’s desire to increase the ability of unions to organize. The Board’s holding grants unions the freedom to approach an employer with “parameters” of a future collective bargaining agreement that will be appealing to the employer. The employer will then be asked to allow a card check of support for the union so that the deal may be finalized. Seeing no problem with the terms proposed by the union, the employer may agree.

Such would be a bad decision by the employer! What employers don’t recognize is that the favorable terms proposed by the union may be changed in a subsequent cba, and that it is near impossible to de-unionize. This decision will negatively impact employers through its creation of a novel organizing method in favor of unions.

Employers should consult labor counsel before entering into any union agreement. In addition, employers should proactively engage in a consistent union avoidance program and review their employee policies to ensure compliance with the latest labor law from the Board.