Dana Corporation, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 2010

356 N.L.R.B. 256 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256
Dana Corporation and International Union, United
Automobile, Aerospace, and Agricultural Im-
plement Workers of America (UAW), AFL–CIO
and Gary L. Smeltzer, Jr. and Joseph Montague
and Kenneth A. Gray. Cases 7–CA–46965, 7–
CA–47078, 7–CA–47079, 7–CB–14083, 7–CB–
14119, and 7–CB–14120
December 6, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
Respondents Dana Corporation and International Un-
ion, United Automobile, Aerospace, and Agricultural
Implement Workers of America (UAW), AFL–CIO—
two parties with a long history of collective bargaining—
entered into a Letter of Agreement (LOA or Agreement)
setting forth ground rules for additional union organiz-
ing, 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 issues before
us are whether, in entering into and maintaining the
LOA, Dana rendered unlawful support to the UAW in
violation of Section 8(a)(2) and (1) of the Act, and
whether the UAW accepted that support in violation of
Section 8(b)(1)(A). We conclude that the Agreement
was lawful, and we therefore dismiss the complaint.
I. PROCEDURAL HISTORY
On April 11, 2005, Administrative Law Judge William
G. Kocol issued the attached decision. The General
Counsel and the Charging Parties filed separate excep-
tions and supporting briefs, the Respondents filed sepa-
rate answering briefs, and the General Counsel and the
Charging Parties filed separate reply briefs. On March
30, 2006, the National Labor Relations Board issued a
notice and invitation to the parties and interested amici
curiae to file briefs addressing the issues in this case. In
response, several amici curiae filed briefs.1 The Charg-
1 Amicus briefs were submitted by: American Federation of Labor
and Congress of Industrial Organizations; American Maritime Associa-
tion; American Rights at Work; Associated Builders and Contractors,
Inc.; Certain Members of the U.S. House of Representatives; Cingular
Wireless; Employees of Freightliner Corporation; General Motors
Corporation, DaimlerChrysler Corporation, and The Ford Motor Com-
pany; Liz Claiborne, Inc.; National Alliance for Worker and Employer
Rights; and Wackenhut Corporation.
Dana has moved to strike certain documents attached to the amicus
brief filed by Employees of Freightliner Corporation. The documents
relate to unfair labor practice charges the employees filed concerning
card-check agreements between Freightliner and the UAW. The
Charging Parties attached some of the same documents to their
posthearing brief in order to support their argument that the Respond-
ing Parties and the Respondents filed briefs in response
to the amici.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the decision and the record
in light of the exceptions and briefs of the parties and
amici and has decided to affirm the judge’s rulings,3
findings, and conclusions as explained below.
II. FACTS
Dana manufactures automotive parts at about 90 facili-
ties throughout the United States, Canada, and as many
as 30 other countries. Dana and the UAW have a
longstanding bargaining relationship: the UAW repre-
sents Dana’s employees in nine bargaining units at vari-
ous locations covering 2200 to 2300 employees in total.
This case arose at Dana’s St. Johns, Michigan facility,
where Dana employs about 305 unrepresented employees
and where, in early 2002, the UAW began an organizing
campaign. On August 6, 2003, Dana and the UAW en-
ents had a proclivity to violate the Act and that a nationwide remedy
was therefore appropriate. The judge struck the documents from the
record, and the Charging Parties except to that ruling. In light of our
dismissal of the complaint, which makes the issue of a nationwide
remedy moot, we find it unnecessary to pass on whether the judge
correctly struck the documents from the record. However, we deny
Dana’s motion to strike the documents from the Employees of Freight-
liner’s amicus brief. The Board’s solicitation of amicus briefs did not
impose any limits on the subject matter of the briefs or their attach-
ments. We therefore accept the documents for the limited purpose for
which they were submitted, i.e., to chronicle the experience of the
Freightliner employees.
2 Member Becker has recused himself and took no part in the con-
sideration or disposition of this case. See Pomona Valley Hospital
Medical Center, 355 NLRB 238 (2010) (Member Becker, ruling on
motions).
3 Before the hearing, the General Counsel and the Charging Parties
issued subpoenas seeking documents concerning any negotiations lead-
ing to the Letter of Agreement (LOA), the interpretation and “actual or
potential use” of the LOA, meetings with employees concerning the
LOA, union literature concerning the LOA, and the implementation of
the LOA’s access and employee-list provisions. The Respondents
moved to quash the subpoenas. At the hearing, the General Counsel
and the Charging Parties asserted that the documents would establish
that the LOA was the product of negotiations between the UAW and
Dana; that its terms were binding; and that the UAW, in negotiating the
LOA, was pursuing its own interests in organizing, rather than the
interests of the St. Johns employees. The General Counsel and the
Charging Parties except to the judge’s quashing of the subpoenas.
We affirm the judge’s ruling. The LOA speaks for itself. Moreover,
other record evidence already establishes that the LOA was the product
of negotiations. David Warders, Dana’s vice president of labor rela-
tions, testified that the LOA was negotiated during a series of meetings
with the UAW over a 2-½ to 3-day period. For the purposes of this
decision, we accept that the LOA was binding on Dana and the UAW,
and we find no relevance to whether the UAW was pursuing its own
organizational interests. Therefore, the subpoenaed documents do not
relate to any matter in question in this proceeding. See Sec. 102.31(b)
of the Board’s Rules and Regulations.
356 NLRB No. 49

DANA CORP. 257
tered into the LOA, which set forth a framework to gov-
ern their relationship in the future, in the event that a
majority of the St. Johns employees chose to designate
the UAW as their exclusive collective-bargaining repre-
sentative.4 The LOA’s introductory statement of purpose
recognized “that dramatic changes in the domestic auto-
motive market ha[ve] created new quality, productivity
and competitiveness challenges for the automotive com-
ponent supplier.” It further stated that Dana and the
UAW believed that “these challenges will be more effec-
tively met through a partnership that is more positive,
non-adversarial and with constructive attitudes toward
each other.” The introductory statement continued:

Employee[] freedom to choose is a paramount concern
of Dana as well as the UAW. We both believe that
membership in a union is a matter of personal choice
and acknowledge that if a majority of employees wish
to be represented by a union, Dana will recognize that
choice. The Union and the Company will not allow
anyone to be intimidated or coerced into a decision on
this important matter. The parties are also committed
to an expeditious procedure for determining majority
status.

The LOA then set forth ground rules for both parties
that would be applicable in any organizing campaign the
UAW might undertake at an unorganized Dana facility.
Dana agreed to inform employees that it was “totally
neutral regarding the issue of representation by the Un-
ion” and that it has “a constructive and positive relation-
ship with the UAW and that a National Partnership
Agreement with the UAW exists in which both parties
are committed to the success and growth” of Dana. Dana
agreed to provide the UAW, upon request, with a list of
the names and addresses of employees in any facility
covered by the Agreement and to permit the UAW to
meet with employees in nonwork areas. The parties
made a no-strike/no-lockout commitment, effective at a
given facility when the UAW requested an employee list
for the facility and continuing until a first contract was
negotiated or any contract-related dispute was resolved.
Dana agreed to recognize and bargain with the UAW
upon proof of majority status, to be determined by a card
check by a neutral third party. The LOA specified that
Dana “may not recognize the Union as the exclusive rep-
resentative of employees in the absence of a showing” of
majority status.
In addition, the LOA set forth certain principles that
would inform future bargaining on particular topics, if
4 The LOA also applied to other Dana facilities, but the complaint is
limited to the St. Johns facility.
and when the UAW was recognized. For instance, re-
garding healthcare, article 4.2.1 of the LOA stated that
“the Union commits that in no event will bargaining be-
tween the parties erode current solutions and concepts in
place or scheduled to be implemented January 1, 2004, at
Dana’s operations which include premium sharing, de-
ductibles, and out-of-pocket maximums.” Article 4.2.2
specified that the minimum duration of any collective-
bargaining agreement between Dana and the UAW
would be 4 years, and that the parties would discuss con-
tract durations of up to 5 years. Article 4.2.4 provided as
follows:

The parties agree that in labor agreements bargained
pursuant to this Letter, the following conditions must
be included for the facility to have a reasonable oppor-
tunity to succeed and grow.

• Healthcare costs that reflect the competitive
reality of the supplier industry and product(s)
involved
• Minimum classifications
• Team-based approaches
• The importance of attendance to productivity
and quality
• Dana’s idea program (two ideas per person
per month and 80% implementation)
• Continuous improvement
• Flexible Compensation
• Mandatory overtime when necessary (after
qualified volunteers) to support the customer.

The LOA also specified steps that the parties would
take if they were unable to reach a final agreement. Arti-
cle 4.2 provided that, after 5 months, the parties would
submit unresolved issues to a joint UAW/Dana commit-
tee. If 6 months were to pass without a contract, the par-
ties would submit unresolved issues to a neutral for in-
terest arbitration, and the neutral would select either Da-
na’s final offer or the UAW’s.
In an August 13, 2003 press release, Dana announced
that it and the UAW had reached a “partnership agree-
ment” that they expected would benefit both parties and
would position Dana well in the competitive automotive
parts market. The release stated that the LOA “supports
the freedom our people have always enjoyed to choose
whether or not they wish to be represented by a union.”
The record does not permit a finding as to whether and
to what extent the press release and LOA were made

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258
available to employees. However, according to evidence
proffered by the General Counsel (but rejected by the
judge as irrelevant to the legality of the LOA), Dana told
employees in August 2003 that it had entered into a
“neutrality agreement” with the UAW, and that any ques-
tions about the Agreement should be directed to Dana’s
legal department.
In early December 2003, the UAW requested a list of
the employees working at the St. Johns facility, pursuant
to the LOA. Thereafter, the three individual Charging
Parties, who are Dana employees at the St. Johns facility,
filed unfair labor practice charges. On September 30,
2004, the General Counsel issued a complaint alleging
that, by “entering into” and “maintain[ing]” the LOA,
Dana rendered unlawful assistance to the UAW in viola-
tion of Section 8(a)(2) and (1) of the Act and the UAW
restrained and coerced employees in the exercise of their
Section 7 rights in violation of Section 8(b)(1)(A).
III. THE JUDGE’S DECISION
The judge dismissed the complaint on procedural
grounds and, alternatively, on the merits. Regarding
procedure, the administrative law judge observed that the
complaint framed the issue as whether the LOA consti-
tuted 8(a)(2) assistance (and a correlative 8(b)(1)(A) vio-
lation by the UAW). The judge stated, however, that the
General Counsel, in his posthearing brief, did not argue
the illegality of any of the substantive provisions of the
LOA, but rather asserted that the LOA amounted to a
grant and acceptance, respectively, of Dana’s recognition
of the UAW as the employees’ exclusive bargaining rep-
resentative. Because “the General Counsel did not plead
the ‘act’ of unlawful recognition,” the judge held that the
complaint failed to comply with the due-process guaran-
tee embodied in Section 102.15 of the Board’s Rules and
Regulations.5
In the alternative, the judge dismissed the complaint on
the merits. He observed that an employer violates Sec-
tion 8(a)(2) when it recognizes a minority union as the
exclusive bargaining representative, and that a union
violates Section 8(b)(1)(A) when it accepts such recogni-
tion. Ladies Garment Workers v. NLRB (Bernhard-
Altmann), 366 U.S. 731 (1961). The judge concluded,
however, that Dana had not granted recognition here.
The judge rejected the argument that the LOA consti-
tuted a collective-bargaining agreement from which
recognition could be inferred. He found that the LOA
5 Sec. 102.15 requires a complaint to contain “a clear and concise
description of the acts which are claimed to constitute unfair labor
practices, including, where known, the approximate dates and places of
such acts and the names of respondent’s agents or other representatives
by whom committed.”
“touch[ed] upon” some terms and conditions of employ-
ment, but was “a far cry from a collective-bargaining
agreement.” The judge reasoned that the lack of recogni-
tion and the absence of a collective-bargaining agreement
distinguished this case from Majestic Weaving Co., 147
NLRB 859 (1964), enf. denied 355 F.2d 854 (2d Cir.
1966). In that case, the Board held that an employer vio-
lated Section 8(a)(2) and (1) by negotiating a complete
collective-bargaining agreement, the signing of which
was conditioned on the union’s achieving majority status.
As an alternative basis for dismissal on the merits, the
judge found that the negotiation of the LOA was lawful
under Board precedent governing “after-acquired stores”
clauses in collective-bargaining agreements. See Hou-
ston Division of the Kroger Co., 219 NLRB 388 (1975).
Such clauses typically provide that an employer with
multiple facilities will recognize the union as the repre-
sentative of employees in facilities acquired after the
execution of the agreement and will apply the collective-
bargaining agreement to those employees, upon proof
that a majority of them support the union.
Here, the judge found that Dana and the UAW have an
existing collective-bargaining relationship at several of
Dana’s other facilities. Under Kroger, the judge rea-
soned, the respondents could lawfully have negotiated a
clause in their existing agreements that would extend
those agreements to cover the St. Johns facility upon
proof of majority status there. The judge reasoned that
the LOA did far less than extend a full contract to a new
facility, and was therefore lawful a fortiori.
Accordingly, the judge dismissed the complaint.
IV. CONTENTIONS OF THE PARTIES AND AMICI
The General Counsel, the Charging Parties, and those
amici who support them assert that the judge erred in
dismissing the complaint. They contend, inter alia, that
(1) the complaint provided adequate notice of the alleged
violation; (2) the LOA included specific terms and condi-
tions of employment and was negotiated at a time when
the UAW did not have majority status, and, therefore, the
LOA provided unlawful support to the UAW under
Bernhard-Altmann and Majestic Weaving, supra; and (3)
Kroger, supra, is inapplicable, or, alternatively, should be
overruled as inconsistent with Majestic Weaving.6
6 We do not address two theories asserted by the Charging Parties,
but not argued by the General Counsel: (1) that the LOA violates Sec.
8(a)(1) because it promises benefits to employees if they choose the
UAW as their representative; and (2) that the UAW violated its duty of
fair representation under Sec. 8(b)(1)(A) by agreeing to concessions on
substantive terms and conditions of employment in exchange for organ-
izing assistance from Dana. Those theories were neither alleged nor
litigated, and the General Counsel has not excepted to the judge’s fail-
ure to find violations on those grounds. The General Counsel controls

DANA CORP. 259
The Respondents and those amici who support them
assert that the judge correctly dismissed the complaint on
procedural grounds and on the merits. They contend,
among other things, that Bernhard-Altmann and Majestic
Weaving are distinguishable from the present case, be-
cause Dana did not recognize the UAW and because the
LOA is not a final or complete collective-bargaining
agreement. Moreover, they contend, the LOA leaves the
St. Johns employees entirely free to reject the Agreement
by declining to choose the UAW as their representative.
Alternatively, they contend, the LOA is lawful under
Kroger.
V. DISCUSSION
We agree with the judge, for the reasons stated below,
that the complaint should be dismissed on the merits.7
We decline the General Counsel’s invitation to extend
the Board’s decision in Majestic Weaving to reach the
facts of this case. Neither Majestic Weaving nor Bern-
hard-Altmann requires us to find a violation here, and
such a finding would contravene fundamental policies
embodied in the Act. We leave for another day the adop-
tion of a general standard for regulating prerecognition
negotiations between unions and employer. As the Su-
preme Court has observed, there are issues of labor law
where the “’nature of the problem, as revealed by unfold-
ing variant situations,’ requires ‘an evolutionary process
for its rational response, not a quick, definitive formula
as a comprehensive answer.’” Eastex, Inc. v. NLRB, 477
U.S. 556, 575 (1978), quoting Electrical Workers v.
NLRB, 366 U.S. 667, 674 (1961).
A.
Section 8(a)(2) of the Act prohibits an employer from
“dominat[ing] or interfer[ing] with the formation or ad-
ministration of any labor organization or contribut[ing]
financial or other support to it.”8 The primary legislative
purpose of Section 8(a)(2) “was to eradicate company
unionism, a practice whereby employers would establish
and control in-house labor organizations in order to pre-
vent organization by autonomous unions.” 1 Higgins,
Developing Labor Law 418–419 (5th ed. 2006). In the
words of the Act’s chief sponsor, Senator Robert Wag-
ner:

the complaint, and the Charging Parties cannot enlarge upon or change
the General Counsel’s theory of the case. See, e.g., Smoke House Res-
taurant, 347 NLRB 192, 195 (2006), enfd. 325 Fed. Appx. 577 (9th
Cir. 2009).
7 Therefore, we need not pass on the judge’s dismissal of the com-
plaint on procedural grounds.
8 Correspondingly, a union that accepts unlawful support violates
Sec. 8(b)(1)(A), which prohibits a union from restraining or coercing
employees in the exercise of their Sec. 7 rights.
Genuine collective bargaining is the only way to attain
equality of bargaining power. . . . The greatest obstacles
to collective bargaining are employer-dominated un-
ions, which have multiplied with amazing rapidity. . . .

1 Leg. Hist. 15 (NLRA 1935).9
Section 8(a)(2) is grounded in the notion that foisting a
union on unconsenting employees and thus impeding
employees from pursuing representation by outside un-
ions are incompatible with “genuine collective bargain-
ing.” It is in this context that the statutory prohibition on
“financial or other support” to unions must be under-
stood.
Although it is clear that an employer may not render
unlawful support, “it is also clear—and the Board has so
held with court approval—that a certain amount of em-
ployer cooperation with the efforts of a union to organize
is insufficient to constitute unlawful assistance.” Long-
champs Inc., 205 NLRB 1025, 1031 (1973). “The quan-
tum of employer cooperation which surpasses the line
and becomes unlawful support is not susceptible to pre-
cise measurement. Each case must stand or fall on its
own particular facts.” Id. at 1031.10
The Board and courts have long recognized that vari-
ous types of agreements and understandings between
employers and unrecognized unions fall within the
framework of permissible cooperation. Notably, em-
ployers and unions may enter into “members-only”
agreements, which establish terms and conditions of em-
ployment only for those employees who are members of
the union. See Consolidated Edison Co. v. NLRB, 305
U.S. 197, 237 (1938). In that decision, the Supreme
Court reasoned that such agreements could be beneficial
to interstate and foreign commerce by protecting against
disruptions caused by industrial strife. Id.
An employer is also permitted to express to employees
a desire to enter into a bargaining relationship with a
particular union and, essentially, to inform employees
that it will enter into a bargaining agreement upon proof
of majority support. Coamo Knitting Mills, 150 NLRB
579 (1964).11
9 Company unions proliferated in the years following passage of Sec.
7(a) of the National Industrial Recovery Act (the precursor to Sec. 7 of
the National Labor Relations Act), and “a consensus opinion was that
the primary motive in many cases was to forestall union organization.”
Kaufman, Accomplishments and Shortcomings of Nonunion Employee
Representation in the Pre-Wagner Act Years: A Reassessment, Nonun-
ion Employee Representation 25 (2000).
10 See also Hertzka & Knowles v. NLRB, 503 F.2d 625, 630 (9th Cir.
1974), cert. denied 423 U.S. 875 (1975) (“[T]here is a line between
cooperation, which the Act encourages, and actual interference or dom-
ination which the Act condemns.”)
11 In Coamo, supra, the employer told employees:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260
Outside the Section 8(a)(2) context, the Board and
courts have also considered and enforced agreements
between employers and unrecognized unions. For exam-
ple, an employer may agree that it will voluntarily recog-
nize a union in the future if the union demonstrates ma-
jority support by means other than an election, including
signed authorization cards. See, e.g., Snow & Sons, 134
NLRB 709, 710 (1961) (employer bound by agreement
to honor results of card check), enfd. 308 F.2d 687 (9th
Cir. 1962); Hotel & Restaurant Employees Local 217 v.
J. P. Morgan Hotel, 996 F.2d 561 (2d Cir. 1993) (enforc-
ing card-check and neutrality agreement pursuant to Sec.
301 of Labor Management Relations Act).12 The courts
have rejected arguments that card-check/neutrality
agreements between unions and employers violate Sec-
tion 302 of the Taft-Hartley Act, which (with certain
exceptions) prohibits employers from providing a “thing
of value” to unions.13 Finally, a multifacility employer
and a union may lawfully provide in a collective-
bargaining agreement that the employer will recognize
the union as the representative of, and apply the collec-
tive-bargaining agreement to, employees in facilities the
employer acquires in the future. See Kroger Co., su-
pra.14
B.
Although the law permits certain forms of cooperation
between employers and minority or unrecognized unions,
an employer crosses the line between cooperation and
support, and violates Section 8(a)(2), when it recognizes
a minority union as the exclusive bargaining representa-
tive. This is the principle reflected in the Supreme
Court’s decision in Bernhard-Altmann, supra.
There, during an organizing campaign, certain em-
ployees engaged in a strike unrelated to the organizing
effort. Before the union had obtained majority support,
Although you are under no compulsion, we urge you to join [the Un-
ion]. The Company will negotiate a contract with the Union, which
we believe will be mutually beneficial. I believe the mill will operate
with least friction if there is a union contract and all of the workers are
members of the Union.
150 NLRB at 595. See also Tecumseh Corrugated Box Co., 333 NLRB
1, 8 (2001) (no 8(a)(2) violation where employer told employees that he
“liked working with unions” before introducing union representatives
and allowing them to address employees on company property and
during worktime).
12 See also Adcock v. Freightliner LLC, 550 F.3d 369, 371 fn. 1 (4th
Cir. 2008) (collecting cases). See generally Brudney, Neutrality
Agreements and Card Check Recognition: Prospects for Changing
Paradigms, 90 Iowa L. Rev. 819 (2005).
13 See, e.g., Adcock v. Freightliner LLC, supra; Hotel & Restaurant
Employees Local 57 v. Sage Hospitality Resources, LLC, 390 F.3d 206,
218–219 (3d Cir. 2004).
14 Accord: Raley's, 336 NLRB 374, 378 (2001); Alpha Beta Co., 294
NLRB 228, 229 (1989).
the employer and the union signed a memorandum of
understanding (MOU) that ended the strike, recognized
the union as the exclusive bargaining representative,
called for improving certain terms and conditions of em-
ployment, and provided that a “formal agreement con-
taining these terms” would “be promptly drafted . . . and
signed. . . .” The union obtained majority support before
the parties executed the formal collective-bargaining
agreement. Id.
The Supreme Court held that the employer violated
Section 8(a)(2) by recognizing a minority union as the
exclusive bargaining representative (even though the
employer believed in good faith that the union had ma-
jority support) and that the union violated Section
8(b)(1)(A) by accepting recognition. In the Court’s
view, it was irrelevant that the union had majority sup-
port at the time the collective-bargaining agreement was
executed, because the employer’s prior recognition of the
union, when it did not have majority support, was “a fait
accompli depriving the majority of the employees of
their guaranteed right to choose their own representa-
tive.” 366 U.S. at 736 (quoting the lower court’s deci-
sion, 280 F.2d 616, 621 (D.C. Cir. 1960)). The Court
reasoned that the union’s later acquisition of majority
status “itself might indicate that the recognition secured
by the [MOU] afforded [the union] a deceptive cloak of
authority with which to persuasively elicit additional
employee support.” Id. The Court emphasized:

[T]he violation which the Board found was the grant by
the employer of exclusive representation status to a mi-
nority union, as distinguished from an employer’s bar-
gaining with a minority union for its members only.
Therefore, the exclusive representation provision is the
vice in the agreement. . . .

Id. at 736–737 (emphasis added).
Three years after Bernhard-Altmann, and relying en-
tirely on the Supreme Court’s decision, the Board held in
Majestic Weaving, supra, that an employer violated Sec-
tion 8(a)(2) in similar circumstances. 147 NLRB at 860–
861. In Majestic Weaving, the Teamsters Union, which
did not represent employees at any of Majestic’s facili-
ties, requested recognition at one facility where Majestic
was still in the process of hiring employees. Majestic
orally agreed to negotiate a contract, “conditioning the
actual signing with [the Teamsters] on the latter achiev-
ing a majority at the ‘conclusion’ of negotiations.” Id. at
860. The parties then negotiated a collective-bargaining
agreement; prior to signing it, the Teamsters presented
Majestic with authorization cards signed by a majority of
the unit employees. Another union, the Textile Workers,
then began an organizing campaign at the facility, ulti-

DANA CORP. 261
mately securing authorization cards from a majority of
the employees and demanding recognition. Majestic
refused that demand, asserting that it had already recog-
nized the Teamsters.
The Board found that Majestic had unlawfully assisted
the Teamsters by facilitating the solicitation of authoriza-
tion cards by a company supervisor and had unlawfully
recognized the Teamsters. The Board observed that:

In the Bernhard-Altmann case an interim agreement ...
was the vehicle for prematurely granting a union exclu-
sive bargaining status which was found objectionable;
in this case contract negotiation following an oral
recognition agreement was the method. We see no dif-
ference between the two in the effect upon employee
rights.

147 NLRB at 860 (emphasis added). The Board according-
ly ruled that Majestic’s recognition of the Teamsters and
negotiation of a collective-bargaining agreement with the
union before it had achieved majority support violated Sec-
tion 8(a)(2) of the Act. Id. at 860–861.15
15 The Majestic Weaving Board accordingly overruled the Board’s
pre-Bernhard-Altmann decision in Julius Resnick, Inc., 86 NLRB 38
(1949), insofar as it held—contrary to Bernhard-Altmann—“that an
employer and a union may agree to terms of a contract before the union
has organized the employees concerned, so long as the union has ma-
jority representation when the contract is executed.” 147 NLRB at 860
fn. 3. This statement must be understood in context.
In Julius Resnick, an employer and a union agreed—before any
showing of majority support was made—that a preexisting collective-
bargaining agreement would be applied to a particular plant, but that
before the contract was executed, the employees would be “organized”
by the union. 86 NLRB at 46. The Board ultimately adopted a trial
examiner’s finding that the employer had not unlawfully assisted the
union’s organizing efforts through the conduct of certain staff who
were determined not to be supervisors. In passing, the Board observed
that the employer’s conduct in agreeing to a contract prematurely was
not unlawful, because the union did represent a majority of employees
by the time the agreement was executed. 86 NLRB at 39. The conduct
in Julius Resnick, then, was comparable to the conduct in Majestic
Weaving and Bernard-Altmann: The employer had agreed to recognize
the union prematurely, and, after Bernhard-Altmann, that unlawful
action could not be cured by a later (and necessarily tainted) showing of
majority support.
After Majestic Weaving, the Board has reaffirmed the rule estab-
lished there that an employer may not reach a collective-bargaining
agreement with a union whose majority support comes after and fol-
lows from the agreement itself, and thus is tainted. See Wickes Corp.,
197 NLRB 860 (1972). In Wickes, the employer and a union coalition,
which represented none of the employer’s workers, negotiated and
reached agreement on a contract. Union-membership applications then
were attached to employee timecards. Next, the employer facilitated
employees’ attendance at a meeting where union representatives in-
formed employees of the contract, conducted a ratification vote, and
belatedly secured authorization cards from a majority of employees.
197 NLRB at 861. In distinguishing Coamo Knitting Mills, supra,—
which the employer characterized as “exactly analogous” and a “com-
plete defense,” id. at 862—the Wickes Board found it unnecessary to go
C.
The General Counsel and the Charging Parties argue
that Majestic Weaving creates a per se rule that negotia-
tion with a union “over substantive terms and conditions
of employment” is unlawful if it occurs before the union
has attained majority support. Such negotiations, they
contend, grant the union “privileged” status in the eyes of
employees and present the sort of “fait accompli” prohib-
ited by Majestic Weaving, because “give and take negoti-
ations” resulting in an agreement like the one involved
here amount to “tacit recognition” of the union.
We reject this broad reading of Majestic Weaving.
Neither Majestic Weaving, nor the decision on which it
rests, Bernhard-Altmann, compels a finding that the con-
duct at issue here violated Section 8(a)(2). Adopting the
prohibition urged by the General Counsel and the Charg-
ing Parties, in turn, would not advance the policies of the
Act as a whole. Rather, it would create an unnecessary
obstacle to legitimate collective bargaining without genu-
inely promoting employee free choice.
1.
There are obvious and significant distinctions between
this case and Majestic Weaving. Majestic Weaving in-
volved an initial, oral grant of exclusive recognition by
the employer to the union. That recognition was fol-
lowed by the negotiation of a complete collective-
bargaining agreement, which was consummated except
for the ministerial act of execution by the parties.16 The
union’s showing of majority support not only came after
the complete agreement was reached, but it depended on
the solicitation of authorization cards by a supervisor, as
facilitated by the employer itself.
Here, the LOA did no more than create a framework
for future collective bargaining, if (as specified in the
agreement) the UAW were first able to provide proof of
majority status by means of a card check conducted by a
neutral third party. The LOA did not contain an exclu-
sive-representation provision (the “vice” of the agree-
ment in Bernhard-Altmann). Indeed, the LOA expressly
prohibited Dana from recognizing the UAW without a
showing of majority support. Only the negotiation of the
beyond pointing out that Wickes reached agreement on a contract with
the unions before gaining majority support. Id. at 860 fn. 1.
16 Under the Act, once the parties reach a collective-bargaining
agreement, they are legally obligated to execute it; the failure to exe-
cute, in other words, does not prevent the agreement from having bind-
ing effect. See Sec. 8(d) (statutory duty to bargain includes the “execu-
tion of a written agreement incorporating any agreement reached if
requested by either party”). See, e.g., Flying Dutchman Park, 329
NLRB 414 (1999). Thus, postponing execution of a collective-
bargaining agreement that would be unlawful when reached does not
avert an unfair labor practice.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262
LOA, and no other conduct, is alleged to be an unfair
labor practice interfering with employee free choice.
The crux of the General Counsel’s position is that the
negotiation of the LOA itself precluded a truly free
choice. That position has no real support in Majestic
Weaving or Bernhard-Altmann. In those cases, a prema-
ture grant of exclusive recognition by the employer gave
the union, in the Supreme Court’s words, a “deceptive
cloak of authority” as it sought employee support.17 But
neither the negotiation of the LOA nor the Agreement
itself can be equated with a grant of exclusive recogni-
tion as that concept has been long understood in our law.
That the LOA set forth certain principles that would
inform future bargaining on particular topics—
bargaining contingent on a showing of majority support,
as verified by a neutral third party—is not enough to
constitute exclusive recognition. The UAW did not pur-
port to speak for a majority of Dana’s employees, nor
was it treated as if it did. On the contrary, the LOA un-
mistakably disclaimed exclusive recognition by setting
forth the process by which such status could be achieved.
Nothing in the LOA affected employees’ existing terms
and conditions of employment or obligated Dana to alter
them. Any potential effect on employees would have
required substantial negotiations, following recognition
pursuant to the terms of the Agreement.18 Nothing in the
Agreement, its context, or the parties’ conduct would
reasonably have led employees to believe that recogni-
tion of the UAW was a foregone conclusion or, by the
same token, that rejection of UAW representation by
employees was futile.
The General Counsel’s position is rooted in the as-
sumption that any employer conduct having the potential
to enhance an unrecognized union’s status in the em-
ployees’ eyes is unlawful. But that is contrary to our
law. For example, as shown above in section A, an em-
ployer may negotiate nonexclusive “members-only”
agreements, may agree to remain neutral in an organizing
campaign, may agree to voluntarily recognize the union
upon proof of majority support, and may state its prefer-
17 The Board’s decision in Wickes, supra, also falls into this catego-
ry.
18 Notably, under existing law, the LOA—even if it had granted ex-
clusive recognition to the UAW—would not be sufficient to bar a peti-
tion for a Board election, given its limited scope and general provi-
sions. Appalachian Shale Products Co., 121 NLRB 1160, 1163–1164
(1958) (“[T]o serve as a bar, a contract must contain substantial terms
and conditions of employment deemed sufficient to stabilize the bar-
gaining relationship; it will not constitute a bar if it is limited to wages
only, or to one or several provisions not deemed substantial.”). In
Bernhard-Altmann, in contrast, the Supreme Court pointed out that the
agreement at issue would have barred an election petition under the
Board’s contract-bar doctrine. 366 U.S. at 737 fn. 8.
ence for unionization. In each of those scenarios, the
employer’s cooperation with the union could enhance the
union’s prestige, yet none of them is unlawful.
All of the decisions relied upon by the General Coun-
sel for the proposition that negotiation of the LOA
amounted to “tacit recognition” are easily distinguisha-
ble.19 None involves a situation where recognition is
attacked as unlawful under Section 8(a)(2). Rather, they
involve employers that reviewed a union’s proffered
evidence of majority support and either began bargaining
or agreed to bargain, but later denied that a legally bind-
ing recognition had occurred. Plainly, those circum-
stances are not present here. The UAW has not claimed
majority status, let alone presented proof to Dana, and
neither the UAW nor Dana claims that recognition has
taken place.
2.
Adopting the General Counsel’s position would mean
extending existing law in a truly novel way. Card-
check/neutrality agreements, long upheld by the Board
and the courts, would be categorically prohibited if they
also addressed any substantive issue for future bargain-
ing, despite disclaiming exclusive recognition and de-
spite a context free of unfair labor practices. We decline,
as a matter of labor policy, to take that step.
The ultimate object of the National Labor Relations
Act, as the Supreme Court has repeatedly stated, is “in-
dustrial peace.”20 Section 1 of the Act states that the
goal of industrial peace is to be achieved by “encourag-
ing the practice and procedure of collective bargaining,”
as well as by “protecting the exercise by workers of full
freedom of association, self-organization, and designa-
tion of representatives of their own choosing.”
As discussed earlier, it is well settled, consistent with
those policies, that an employer may voluntarily recognize a
union that has demonstrated majority support by means
other than an election, including (as contemplated by the
LOA in the present case) authorization cards signed by a
majority of the unit employees. Courts have endorsed vol-
untary recognition and deemed it “a favored element of
national labor policy.”21 The Board should hesitate before
19 See Operating Engineers Local 150 v. NLRB, 361 F.3d 395, 400
(7th Cir. 2004); Ednor Home Care, 276 NLRB 392, 393 (1985); Lyon
& Ryan Ford, Inc., 246 NLRB 1, 4 (1979).
20 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996); Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27, 38 (1987), quoting Brooks v.
NLRB, 348 U.S. 96, 103 (1954).
21 NLRB v. Lyon & Ryan Ford, 647 F.2d 745, 750 (7th Cir. 1981),
cert. denied 454 U.S. 894 (1981); NLRB v. Broadmoor Lumber Co.,
578 F.2d 238, 241 (9th Cir. 1978). See also Terracon, Inc., 339 NLRB
221, 225 (2003), affd.sub nom. Operating Engineers Local 150 v.
NLRB, 361 F.3d 395 (7th Cir. 2004) (noting the Board's “established
objective of promoting voluntary recognition”).

DANA CORP. 263
creating new obstacles to voluntary recognition, as adopting
the General Counsel’s position would do.
In practice, an employer’s willingness to voluntarily
recognize a union may turn on the employer’s ability to
predict the consequences of doing so.22 As two attorneys
representing management explained more than 20 years
ago:

[A] relationship with the union is one of the most sig-
nificant business transactions in which an employer can
engage. . . . As in any other potential business relation-
ship, the employer should be able to talk to the other
side and perhaps even reach some preliminary under-
standings before it determines whether it wants to avoid
such a relationship or not.

. . . .

Meeting with a union early on to ascertain its goals and
representation philosophy enables the employer to
more realistically assess (1) the potential impact of the
union on the employer's operations; and (2) the wisdom
of expending company resources to campaign against
the union.

Brown & Morris, Pre-recognition Discussions with Unions,
in U.S. Labor Law and the Future of Labor-Management
Cooperation: Second Interim Report—A Working Docu-
ment 98, 99 (Bureau of Labor-Mgmt. and Cooperative Pro-
grams, U.S. Dep't of Labor 1988). If anything, the im-
portance of permitting employers to engage in at least some
preliminary substantive discussions with a union has grown
since the passage of the Act in 1935 and even since the Ma-
jestic Weaving decision in 1964.23
Certainly, the statutory policies of encouraging collec-
tive bargaining and voluntary recognition must comport
with Section 8(a)(2) and its goals of preserving union
independence and protecting employee free choice. In
our view, however, the General Counsel’s position does
little to further the aims of Section 8(a)(2) and much to
frustrate legitimate, indeed desirable, forms of union-
22 See, e.g., Babson, Bargaining Before Recognition in a Global
Market: How Much Will It Cost?, 58 Lab. & Emp. Rel. Ass’n Series
113 (2006), available at http://www.press.uillinois.edu/journals/irra/
proceedings2006/babson.html.
23 In recent decades, domestic and international competition have in-
tensified. As a result, U.S. companies “face a set of choices about how
to find a competitive advantage in markets where labor costs not only
vary across competitors but where American employers tend to be at or
near the high end of the labor-cost distribution.” Kochan et al., The
Transformation of American Industrial Relations 228 (1994). Profes-
sor Kochan argues that “for competitive reasons employers need in-
creased trust, commitment, and cooperation at the workplace rather
than further institutionalization of adversarial relationships.” Id. at 231.
employer cooperation. Categorically prohibiting prere-
cognition negotiations over substantive issues would
needlessly preclude unions and employers from confront-
ing workplace challenges in a strategic manner that
serves the employer’s needs, creates a more hospitable
environment for collective bargaining, and—because no
recognition is granted unless and until the union has ma-
jority support—still preserves employee free choice.
In rejecting the General Counsel’s position, we do not
adopt the opposite view. We do not hold, in other words,
that every prerecognition agreement, regardless of the
context it in which it was adopted or the conduct that
accompanies it, will always be lawful. Each case, rather,
will depend upon its own facts.
In this case, the UAW and Dana stayed well within the
boundaries of what the Act permits. The LOA was
reached at arm’s length, in a context free of unfair labor
practices. It disclaimed any recognition of the union as
exclusive bargaining representative, and it created, on its
face, a lawful mechanism for determining if and when
the union had achieved majority support. The LOA had
no immediate effect on employees’ terms and conditions
of employment, and even its potential future effect was
both limited and contingent on substantial future negotia-
tions. As its statement of purpose makes clear, the LOA
was an attempt to directly address certain challenges of
the contemporary workplace.24 Considering the LOA as
a whole, we find nothing that presents UAW representa-
tion as a fait accompli or that otherwise constitutes un-
lawful support of the UAW. Indeed, according to the
General Counsel, employees here had no difficulty in
rejecting the UAW’s representation.25
24 The LOA recites that:
The Company and the Union recognize that dramatic changes in the
domestic automotive market ha[ve] created new quality, productivity,
and competitiveness challenges for the automotive component suppli-
er. Both parties believe these challenges will be more effectively met
through a partnership that is more positive, non-adversarial and with
constructive attitudes toward each other.
Jt. Exh. 1, p. 1.
25 The General Counsel proffered evidence, rejected by the judge,
that a majority of the St. Johns employees signed a “Petition Against
UAW Representation” between September 9 and 18—the month after
Dana and the UAW entered into the LOA—stating that they did not
want to be represented by the UAW or “subjected in any way to the
‘partnership agreement’” and requesting that “Dana and the UAW
should not give any effect to the LOA at the St. Johns facility.” The
General Counsel excepts to the judge’s exclusion of the petition and to
his exclusion of evidence that Dana told employees that it had reached
a partnership agreement with the UAW but did not fully and freely
disclose the specific terms of the LOA. The General Counsel argues
that Dana’s actions gave employees the impression that Dana and the
UAW had a “special insider relationship.”
According to the General Counsel’s own proffer, however, employ-
ees reacted to the news of the agreement and the lack of detail provided

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 264
3.
Our dissenting colleague asserts that we “effectively
overrule Majestic Weaving, at least in substantial part.”
But this claim, like the General Counsel’s position here,
is predicated on a sweeping interpretation of Majestic
Weaving, grounded in a different view of labor relations
policy. That policy view is the basis for our colleague’s
insistence that “[t]here are no meaningful factual or legal
distinctions between” this case and Majestic Weaving.
We have read Majestic Weaving carefully, and we have
explained why we regard that case as, indeed, distinct
both factually and legally from this one. It is appropri-
ate, of course, for the Board both to interpret its own
decisions and, where the language of the Act itself does
not settle a question of labor law, to apply its own policy
views.26
The dissent’s reading of Majestic Weaving rests on
two aspects of that decision: a provision in the Board’s
order and the overruling of an earlier Board decision,
Julius Resnick, supra. Neither point compels the conclu-
sion that the dissent reaches. The order in Majestic
Weaving prohibited the employer from, among other
things, “negotiating a contract with any labor organiza-
tion which does not represent a majority of its employees
in the appropriate unit.” 147 NLRB at 862. That reme-
dial provision was tailored to the violations found, which
involved the oral recognition of a minority union, fol-
lowed by the negotiation of a complete collective-
bargaining agreement—the type of “contract” to which
the order refers. The overruling of Julius Resnick, in
turn, did not somehow broaden the holding of Majestic
Weaving itself. As we have explained (supra, fn. 15), the
conduct in Julius Resnick was comparable to the conduct
found unlawful in Bernhard-Altmann and Majestic
Weaving itself, and distinct from what is involved here.
Nor does a single sentence in the Board’s footnote in
Wickes, supra, somehow “put . . . to rest” the “scope of
proscribed assistance,” as our colleague asserts. There,
as explained (supra, fn. 15), prior to any showing of ma-
jority support, the employer and the union reached
agreement on a complete collective-bargaining agree-
ment, which was presented to employees for “ratifica-
tion,” followed by the submission of union-authorization
about it by circulating an antiunion petition. Thus, far from giving the
UAW a “deceptive cloak of authority,” the announcement of the
agreement appears to have mobilized employees against the UAW.
Therefore, we find that the excluded evidence would not affect our
decision that the LOA was lawful. At most, the exclusion was harmless
error.
26 See, e.g., Ceridian Corp. v. NLRB, 435 F.3d 352, 355–357 (D.C.
Cir. 2006) (Board’s interpretation of own precedent and Board’s policy
judgments are entitled to judicial deference).
cards to the employer. 197 NLRB at 861. The Wickes
Board understandably had no difficulty distinguishing
Coamo Knitting Mills, supra, in which an employer law-
fully had told employees that the “Company will negoti-
ate a contract with the Union, which we believe will be
mutually beneficial.” 150 NLRB at 595 (emphasis add-
ed). The Board’s decision in Wickes, notably, did not
even cite Majestic Weaving.
In short, the Board’s precedent does not—despite our
colleague’s claim—compel the categorical conclusion
that an employer violates Section 8(a)(2) whenever it
“negotiates terms and conditions of employment with a
union before a majority of unit employees affected by
these actions has designated the union as their bargaining
representative.” That broad legal rule is stated nowhere
in our case law. Nor does the dissent offer persuasive
policy reasons for adopting such a rule today.
The essential premise of the dissent is that employees,
made aware of an agreement like the one at issue here,
“could reasonably believe they had no choice but to
agree to [union] representation.” Our colleague offers no
evidence in support of this hypothesis—and the evidence
here certainly tends to refute it: a majority of the em-
ployees subsequently rejected the UAW. Where, as in
this case, an agreement expressly requires a showing of
majority support, as determined by a neutral third party,
before the union can be recognized,27 and where no un-
fair labor practices have been committed, it is hard to
believe that a reasonable employee—a rational actor
presumed by Federal labor law to be capable of exercis-
ing free choice—would feel compelled to sign a union-
authorization card simply because the agreement pro-
spectively addresses some substantive terms and condi-
tions of employment. If anything, such an agreement
tends to promote an informed choice by employees.
They presumably will reject the union if they conclude
(or suspect) that it has agreed to a bad deal or that it is
otherwise compromised by the agreement from repre-
senting them effectively.28
VI. CONCLUSION
Accordingly, we find that Dana, by entering into the
LOA, did not cross the line from lawful cooperation with
the UAW to unlawful support of it. Likewise, the UAW
has not accepted unlawful support from Dana.
27 To argue that such an agreement provides the union with a “de-
ceptive cloak of authority,” as our colleague does (quoting the Supreme
Court’s decision in Bernhard-Altman, supra), neglects what the agree-
ment actually says.
28 Because we do not rely on the Board’s decision in Kroger, supra,
as a basis for finding no unfair labor practices here, we need not ad-
dress the dissent’s discussion of the case.

DANA CORP. 265
ORDER
The complaint is dismissed.

MEMBER HAYES, dissenting.
In Majestic Weaving Co., 147 NLRB 859 (1964), enf.
denied 355 F.2d 854 (2d Cir. 1966), the Board found that
an employer violated the Act when it negotiated a com-
plete collective-bargaining agreement with a minority
union. In the present case, the Respondent Dana negoti-
ated substantive contract provisions in a Letter of
Agreement (LOA) with minority union Respondent
UAW. There are no meaningful factual or legal distinc-
tions between the two cases. By dismissing the com-
plaint, my colleagues effectively overrule Majestic
Weaving, at least in substantial part, an action they have
recently conceded cannot be taken by less than a three-
member Board majority.1 Unlike them, I would reaffirm
the sound holding and underlying principles of Majestic
Weaving in finding the alleged violations of Sections
8(a)(2) and (1) and (b)(1)(a) of the Act.2 My colleagues’
approach threatens to reinstate the very practice that
those statutory provisions were meant to prohibit, i.e., the
establishment of collective-bargaining relationships
based on self-interested union-employer agreements that
preempt employee choice and input as to their represen-
tation and desired terms and conditions of employment.
By statutory definition, this practice does not further
genuine industrial peace.
An employer violates Section 8(a)(2) by providing im-
permissible support to a minority union in organizing the
employer’s unrepresented work force.3 Such unlawful
assistance also violates Section 8(a)(1) because it inter-
feres with and restrains employees in the exercise of their
Section 7 right “to bargain collectively through repre-
sentatives of their own choosing” or “to refrain from”
such activity. Further, a union’s acceptance of such as-
1 See Hacienda Resort Hotel & Casino, 355 NLRB 743 (2010)
(concurring opinion of Chairman Liebman and Member Pearce).
2 I disagree with the judge’s finding that the complaint should be
dismissed on procedural grounds because, as pled and litigated, it re-
quires proof that Dana recognized UAW as representative of employees
at the St. John, Michigan plant. The complaint alleges that Dana ren-
dered “unlawful assistance to a labor organization” in violation of Sec.
8(a)(2) and (1), and that the UAW restrained and coerced employees in
violation of Sec. 8(b)(1)(A). The complaint specifies that certain
facts—i.e., the execution of the LOA as it pertained to the St. Johns
facility, the maintenance of the LOA at the St. Johns facility, and the
UAW’s lack of majority representative status among the St. Johns plant
employees—establish the unlawful assistance and coercive conduct
prohibited by Secs. 8(a)(2) and (1) and (b)(1)(A), respectively. This
pleading states a claim for a violation of the Act irrespective of whether
Dana recognized the UAW as the employees’ representative.
3 See Ladies Garment Workers (Bernhard-Altmann Texas Corp.) v.
NLRB, 366 U.S. 731, 739 (1961) (“The act made unlawful by § 8(a)(2)
is employer support of a minority union.”).
sistance violates Section 8(b)(1)(A) because it has a rea-
sonable tendency to restrain or coerce employees in the
exercise of their Section 7 rights. The issue thus present-
ed in this case is whether Dana unlawfully supported the
UAW, and the UAW unlawfully accepted such support,
by negotiating and agreeing to the substantive contract
provisions of the LOA at a time when the UAW did not
have majority status as the exclusive representative for
the St. Johns employees unit.
We do not write on a clean slate here. It is well estab-
lished that an employer unlawfully supports a union by
recognizing it as the exclusive bargaining representative
of employees among whom it does not have majority
support. Bernhard-Altmann, 366 U.S. at 738. A bar-
gaining agreement executed between the parties after
premature recognition is unenforceable even if the union
has achieved majority support in the interim. Id. at 736–
737. This is so because “such acquisition of majority
status itself might indicate that the recognition secured
by the . . . agreement afforded [the union] a deceptive
cloak of authority with which to persuasively elicit addi-
tional employee support.” Id. at 736.
However, premature recognition is not a prerequisite
for finding unlawful support in dealings between an em-
ployer and a minority union. In Majestic Weaving, 147
NLRB at 860, the Board held that an employer unlawful-
ly assisted a union by negotiating a bargaining agreement
with it even though the parties did not execute the
agreement until after the union had secured majority
support. The Board in Majestic Weaving also found im-
plied oral recognition of the Teamsters local, 147 NLRB
at 860, in spite of the facts recited in the trial examiner’s
decision showing that the employer never stated that it
was recognizing the union, id. at 866–867. However, the
Board’s order in Majestic Weaving contains separate
injunctive paragraphs, one requiring the employer to
cease and desist from recognizing a minority union and
the other requiring the employer to cease and desist from
giving assistance and support to the Teamsters, “and ne-
gotiating a contract with any labor organization which
does not represent a majority of its employees in the ap-
propriate unit.” (Emphasis added.) Most significantly,
the Board overruled a prior case, Julius Resnick, 86
NLRB 38 (1949), “to the extent that it holds that an em-
ployer and a union may agree to terms of a contract be-
fore the union has organized the employees concerned,
so long as the union has majority representation when the
contract is executed.” Id. at 864 fn. 4. There was no
need to overrule this case if the finding of unlawful assis-
tance in Majestic Weaving turned on the fact of recogni-
tion of a minority union, as opposed to negotiating a con-
tract with one.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266
Should there be any doubt about the scope of pro-
scribed assistance, the Board put it to rest in Wickes
Corp., 197 NLRB 860 (1972). There, a trial examiner
found 8(a)(2) assistance based on three factors: the em-
ployer’s distribution of authorization cards for the Tri-
Trades unions, reaching an agreement with them before
employees designated them as their representative, and
the contemporaneous interest of another union in organ-
izing the employees. In affirming the 8(a)(2) finding and
distinguishing the conduct at issue from that found law-
ful in another case,4 the Board found it “unnecessary to
go beyond” the second factor, i.e., reaching an agreement
with a minority union. In the present case, Dana has
undisputedly reached an agreement with the UAW before
employees at the St. Johns plant designated it as their
representative.
Thus, our precedent supports the proposition, which I
would reaffirm and apply here, that premature recogni-
tion is not a prerequisite to finding unlawful employer
assistance of a minority union. In sum, it is clear that an
employer violates Section 8(a)(2) and (1) if it either rec-
ognizes a union or negotiates terms and conditions of
employment with a union before a majority of unit em-
ployees affected by these actions has designated the un-
ion as their bargaining representative, and a union vio-
lates Section 8(b)(1)(A) by accepting recognition or en-
tering into such an agreement. This is so even when the
recognition or the negotiations are conditioned on the
union’s subsequently obtaining majority employee sup-
port. In either instance, the employer has provided the
minority union with “a deceptive cloak of authority with
which to persuasively elicit additional employee sup-
port,” thereby interfering with employee free choice.
In the LOA, the Respondents agreed to neutrality and
access procedures and to provisions for recognition
based on a third party card check to verify the UAW’s
claim of majority support in a newly organized bargain-
ing unit. The legality of the neutrality and card-check
aspects of the LOA is not in dispute here. However, Da-
na’s support for the UAW in the LOA went further. The
Respondents agreed to substantive terms and conditions
of employment for unrepresented employees covering
important bargaining subjects, such as those set forth in
article 4.2.4: attendance, classifications, compensation,
healthcare, mandatory overtime, team-based work
schemes, and work incentives. Furthermore, in advance
of any card majority authorizing the UAW to act on be-
half of the St. Johns employees, the Respondents mutual-
ly agreed that the items of article 4.2.4 had to be includ-
4 Coamo Knitting Mills, 150 NLRB 579 (1964).
ed in any prospective future collective-bargaining
agreement covering these employees.
The extensive assistance rendered by Dana and accept-
ed by the UAW through the LOA exceeded permissible
legal limits. The fact that the parties here, unlike those in
Majestic Weaving and Wickes, did not conclude a com-
prehensive collective-bargaining agreement for unrepre-
sented employees is not dispositive of the legality of the
conduct at issue; nor is the fact that their agreement for
substantive terms and conditions of employment con-
templated further negotiation of final terms. The LOA
was a contract. It did more than establish a purely pro-
cedural framework for potential future bargaining. By
virtue of the LOA, the parties significantly limited the
parameters for negotiation of a number of substantive
issues. The LOA mandated a contract term of 4–5 years,
foreclosed erosion of Dana’s current healthcare cost ini-
tiatives, and included contract provisions for eight bar-
gaining subjects, interest arbitration after 6 months of
negotiations, and a waiver of strike rights in advance of
any final contract. Whether or not there would have to
be more bargaining, the Respondents’ conclusion of the
LOA impermissibly signaled that the UAW already had a
say in the determination of substantive terms and condi-
tions of employment for Dana’s St. Johns employees,
among whom the UAW did not yet have majority sup-
port, giving the UAW “‘a marked advantage over any
other in securing the adherence of employees.’”5
Apart from an unpersuasive attempt to distinguish Ma-
jestic Weaving and Wickes on factual grounds, my col-
leagues assert certain policy reasons to support their po-
sition. They refer to precedent holding that an employer
can lawfully enter into members-only agreements. That
precedent can hardly be extended to validate the negotia-
tion of the LOA provisions at issue here, which clearly
apply to St. Johns employees regardless of whether they
are union members. My colleagues also observe that an
employer can lawfully express a preference for a particu-
lar union and state that it will bargain if employees
choose it as their representative. To hold otherwise
would be inconsistent with an employer’s rights under
5 Bernhard-Altmann, 366 U.S. at 738 (quoting NLRB v. Pennsylva-
nia Greyhound Lines, 303 U.S. 261, 267 (1938)). The Respondents
contend that absent formal recognition of the UAW as the exclusive
bargaining representative, employees could still choose not to be repre-
sented by the UAW and thereby preclude coverage under the LOA.
They note that the St. Johns employees in fact made that choice. Of
course, the legal question before the Board is not whether employees
still had a choice concerning collective-bargaining representation. It is
whether the Respondents’ execution and maintenance of the LOA
assisted a minority union and thereby interfered with and restrained
employees in making their choice. Extant precedent clearly supports
the conclusion that it did.

DANA CORP. 267
Section 8(c) of the Act, but this case involves conduct
beyond the scope of protected noncoercive free speech.
There is likewise no merit in my colleagues’ argument
that applying Majestic Weaving to find violations here
contradicts or even requires overruling precedent holding
that parties may enter into voluntary recognition and neu-
trality agreements. If the alleged violations were found,
the appropriate remedy would be to order the parties to
cease and desist from maintaining and applying the pro-
visions of the LOA relating to the terms and conditions
of employment for St. Johns employees, leaving intact
the procedural voluntary recognition provisions. The
General Counsel does not challenge the legality of such
provisions in the LOA, which relate exclusively to the
alternative private procedure by which a union may legit-
imately attain majority support and an employer may
recognize and bargain with a union after it demonstrates
such support. When a union and an employer negotiate
over such procedural matters, they are not preemptively
determining employees’ terms and conditions of em-
ployment. In that posture, they have greater freedom to
pursue their own self-interests without concern for the
statutory rights of employees.
On the other hand, it is worth noting that voluntary
recognition agreements typically include access and
neutrality provisions, as did the LOA here. A union benefi-
ciary of such an agreement can hardly be viewed as a disad-
vantaged “stranger” or “outsider” during the organizational
process simply because it cannot negotiate substantive terms
and conditions for employees before it gains majority sup-
port among them and recognition on that basis from the
employer.
My colleagues also emphasize that unions and em-
ployers might further benefit from knowing in advance
of executing a voluntary recognition agreement what the
substantive terms of a contract between them would be.
I agree. However, the legality of negotiating such terms
must turn on the statutory rights of employees, not on the
commercial interests of unions and employers. To hold
otherwise is to encourage the escalation of top-down
organizing, by which unions organize employers first and
employees last. Employers already enter into voluntary
recognition agreements for a variety of reasons, includ-
ing the financial savings from avoiding economic war-
fare and the potential benefits of support from the union
when dealing with governmental entities or seeking to
enter new markets. They are not likely to be deterred
from acting on these self-interests simply because they
cannot also determine in advance the precise labor costs
of operating with a unionized work force.
By contrast, employees who are aware that their em-
ployer has already agreed with a union on contract terms
applicable to them may be substantially deterred from
exercising their right to decide whether they want to be
represented by that union, by another union, or by no
union. They would reasonably view the determination
of the representation question as a fait accompli. The
situation is arguably even worse in the context of the
LOA here, whose substantive terms were not disclosed to
employees. In such circumstances, employees could
reasonably believe they had no choice but to agree to
representation by the UAW without even knowing
whether they approved or disapproved of the contract
terms that union had negotiated for them.
My colleagues emphasize the statutory purpose of
achieving industrial peace to justify overruling (or what
they characterize as distinguishing) Majestic Weaving.
They essentially reason that (a) the process of voluntary
recognition of a “legitimate” union always serves that
purpose and (b) the process cannot be fully effective un-
less parties are permitted to negotiate substantive terms
and conditions of employment in advance of majority-
based recognition. Of course, they readily admit that
employer recognition of dominated company unions does
not serve industrial peace. It was to prevent such a prac-
tice that Section 8(a)(2) was enacted. Ironically, their
opinion that prerecognition negotiation of substantive
contract terms must be permitted serves to revive that
practice in a modern form.6 One need look no further
than dissident criticisms of SEIU “template” agreements
with health care and food industry employees to find
evidence that the quid pro quo exchange of union con-
cessions on substantive bargaining rights for employer
neutrality in organizing campaigns is not universally
regarded, even among union advocates, either as further-
ing industrial stability or as protecting employee choice.7
Finally, contrary to arguments made by the judge and
the Respondents, I find that the Board’s decision in
Kroger pertaining to the lawfulness of an “additional
stores” provision is inapposite. Unlike the clause at issue
in Houston Division of the Kroger Co., 219 NLRB 388
(1975), the LOA was not part of any master contract or
collective-bargaining agreement in place at any of Da-
na’s represented facilities. Thus, it was not the product
of arm’s-length bargaining between an employer and the
duly designated majority representative of unit employ-
ees.
6 My colleagues’ opinion also suggests, without so stating, that an
employer would violate Sec. 8(a)(5) by refusal to abide by the prede-
termined contract terms in subsequent bargaining with a union that
secures majority support.
7 See, e.g., Kaplan, Esther. “Labor's Growing Pains.” The Nation.
(June 16, 2008); Greenhouse, Steven. “Union Grows, but Leader Faces
Criticism.” The New York Times. (Feb. 29, 2008).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268
The Respondents argue that under Kroger they could
have included a provision in their extant master agree-
ment providing for the extension of its terms to unrepre-
sented employees at other facilities, including the St.
Johns plant, upon a showing of majority support for the
UAW at those facilities.8 The point is, however, that
they did not do so. There is a meaningful difference be-
tween the execution and maintenance of the LOA, cover-
ing unrepresented employees, by Dana and a minority
UAW and the execution of a collective-bargaining
agreement between Dana and the UAW as the majority
representative of employees covered by that contract.
Kroger, therefore, offers the Respondents no support.9
For all the above reasons, I find that the Respondents’
execution and maintenance of the LOA was unlawful.
My colleagues’ decision to permit substantive contract
negotiations as long as the union is not formally recog-
nized as a bargaining representative is contrary to the
holding and rationale of Majestic Weaving and Wilkes,
which they lack the power to overrule. It is also com-
pletely unnecessary to facilitate the process of establish-
ing collective-bargaining relationships in voluntary
recognition situations. Instead, my colleagues facilitate
the preemptive practice of top-down organizing of em-
ployers by unions, thereby subordinating the statutory
rights of employees to the commercial self-interests of
the contracting parties. This is a practice that Section
8(a)(2) and (1) and Section 8(b)(1)(A) of the Act were
designed to prohibit in the interests of industrial peace.
Accordingly, I would reverse the judge and find viola-
tions as alleged.

Sarah Pring Karpinen, Esq., for the General Counsel.
Stanley J. Brown and Emily J. Christiansen, Esqs. (Hogan &
Hartson, LLP), of McLean, Virginia, for Respondent Dana.
Betsey A. Engel and Blair Simmons, Esqs., of Detroit, Michi-
gan, for Respondent UAW.
William A. Messenger, Esqs. (National Right to Work Legal
Defense Foundation), of Springfield, Virginia, for the
Charging Parties.
8 See Raley’s, Inc., 336 NLRB 374 (2001), applying Kroger to allow
agreements covering future organization of currently unrepresented
employees at existing stores. I express no opinion whether Raley’s was
correctly decided, but I recognize it as extant law.
9 There is as well a meaningful difference between this case and a
situation involving a potential successor employer’s negotiation of
terms and conditions of employment with the incumbent bargaining
representative of a predecessor’s employers prior to the successor’s
actual commencement of operations. I do not address here whether and
to what extent such negotiations are limited by Sec. 8(a)(2).
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Detroit, Michigan, on February 8, 2005. The
charges were filed against Dana Corporation (Dana) and Inter-
national Union, United Automobile, Aerospace and Agricultur-
al Implement Workers of America (UAW), AFL–CIO (the
UAW) by Gary L. Smeltzer Jr., Joseph Montague, and Kenneth
A. Gray (the Charging Parties) on December 16, 2003, January
22, 2004, and January 22, 2004 respectively. The complaint
that issued on September 30, 2004, alleges that on August 6,
2003,1 Dana and the UAW entered into and maintained a Letter
of Agreement that set forth the terms and conditions of em-
ployment to be negotiated in a collective-bargaining agreement
should the UAW obtain majority status as the exclusive collec-
tive-bargaining representative of certain of Dana’s employees,
including those at its facility located in St. Johns, Michigan.
The complaint further alleges that the Respondents entered into
the Letter of Agreement at a time when the UAW was not the
majority collective-bargaining representative at the St. Johns
facility. By such conduct, the complaint alleges, Dana violated
Section 8(a)(2) and (1) of the National Labor Relations Act (the
Act) and the UAW violated Section 8(b)(1)(A). It is notewor-
thy that the complaint does NOT allege that Dana recognized
the UAW as the exclusive collective-bargaining representative
for the employees at the St. John facility.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Parties, Dana, and the
UAW,2 I make the following
FINDING OF FACT
I. JURISDICTION
Dana, a corporation, with several facilities located through-
out the United States, including a facility located in St. Johns,
Michigan, is engaged in the manufacture and nonretail sale for
the automobile industry. During the calendar year 2003 Dana,
in conducting its operations described above, purchased and
received goods and supplies at its Michigan facility valued in
excess of $50,000 from points located outside the State of
Michigan. Respondents admit and I find that Dana is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) and the UAW is a labor organization within
the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
Dana makes automotive parts and light- and heavy-duty
components for industrial and off highway vehicles. Its three
1 All dates are in 2003, unless otherwise indicated.
2 Dana and the UAW each filed a motion to strike Exhs. 1 and 2 that
are attached to the Charging Parties’ brief. The Charging Parties filed a
response defending the attachment of a complaint to its brief. The
Charging Parties correctly argue that they are free to cite precedent in
their brief and to attach copies as a courtesy to the judge. But a com-
plaint has no precedential value and I therefore grant the motion to
strike.

DANA CORP. 269
biggest products are frames, axles, and drive shafts. It has
about 90 facilities located throughout the United States and
Canada and 25–30 in foreign countries. About 300 nonsupervi-
sory employees work at the St. John facility. The UAW has
been conducting an organizing campaign there since early
2002, but as of the date of the hearing it had not yet claimed to
represent a majority of the employees.
Dana and the UAW have a longstanding collective-
bargaining relationship that has resulted in a master agreement
that covers three units at two locations and six other contracts
covering about 2200–2300 employees. Dana has not and does
not recognize the UAW as the collective-bargaining representa-
tive for any of the employees at the St. John facility.
On August 6, Dana and the UAW entered into a Letter of
Agreement (the Agreement). The agreement is 17 pages plus
attachments. It sets forth its purpose as:

The Company and the Union recognize that dramatic
changes in the domestic automotive market has [sic] creat-
ed new quality, productivity, and competitiveness chal-
lenges for the automotive component supplier. Both par-
ties believe these challenges will be more effectively met
through a partnership that is more positive, non-
adversarial and with constructive attitudes towards each
other. The Company and the Union also recognize the
significant contribution of the skills and loyalty of the
workforce to the success of the Company and the im-
portance of the investment in the skills of the workers.
The parties believe that job flexibility is a positive learning
experience not a negative assignment. Each recognizes
the significant role that the other must play in the success
of the Company. To these ends, the Company and the Un-
ion hereby pledge renewed energies and commitment to
increase productivity, efficiency, and quality of operations
and to maximize the competitive capability of the Compa-
ny achieving a desirable balance of a fair day’s work for a
fair day’s pay.
The Union, the Company and its employees will work
together in a spirit of teamwork, cooperation and mutual
understanding to improve product quality, productivity,
improve working conditions, enhance the opportunities of
the work force; and grow the business to increase job se-
curity and shareholder value. Both the Company and the
Union are committed to increase investment opportunities,
increase return on investment and grow the facilities that
are competitive and profitable. The Company and the Un-
ion believe in the interdependent relationship of quality,
operating efficiency and empowerment of people to job
security. The Dana Style of management has for many
years adhered to these axioms. They are essential to the
future of Dana and our workforce.
The Company’s recognition of the changing automo-
tive component industry prompted a change in our ap-
proach to UAW representation. The Company is optimis-
tic that a partnership with the UAW may assist Dana in
achieving new business with our Big 3 customers, which
would benefit Dana and its employees.
Employee’s freedom of choice is a paramount concern
of Dana as well as the UAW. We both believe that mem-
bership in a union is a matter of personal choice and
acknowledge that if a majority of employees wish to be
represented by a union, Dana will recognize that choice.
The Union and the Company will not allow anyone to be
intimidated or coerced into a decision on this important
matter. The parties are also committed to an expeditious
procedure for determining majority status.
If a Dana employee chooses to be or not to be repre-
sented by the UAW, there will be no reprisals by the
UAW or the Company due to their choice.
These mutually beneficial commitments are the basis
for a renewed partnership between the Company and the
Union. The Company and the Union are individually and
collectively committed to the implementation of these
fundamentally sound principles and if achieved, the Com-
pany, the Union and the employees will benefit.

The Letter of Agreement provides that Dana will adopt a po-
sition of neutrality in the event that the UAW sought to repre-
sent employees at the facilities covered by the agreement. Re-
spondents pledged not to say anything negative about each
other. Among other things, Dana pledged not to do or say any-
thing that implied opposition to unionization. It promised to
inform employees, among other things, that it is neutral on the
issue of representation by the UAW and that it has a construc-
tive relationship with the UAW
In the Letter of Agreement, Dana also indicated that it would
provide the UAW, upon request, with a list of employees and
home addresses, among other things. Dana promised to pro-
vide access to the UAW to employees during the workday in
nonwork areas and to meet with employees on the premises
during worktime.
The Letter of Agreement spelled out a procedure for deter-
mining the majority status of the UAW. Once the UAW’s ma-
jority status was established, Dana agreed to recognize it and
bargain on an expedited schedule. The Letter of Agreement
also provides:

The Union and the Company recognize that the cost of quality
healthcare for employees has become a national crisis that
jeopardizes the Company’s ability to compete in the global
markets that Dana serves. Until a national solution to this
problem is achieved, the Union and the Company agree that
the current situation demands affirmative actions to mitigate
the dire affects that the cost of healthcare for the Company’s
employees and the Union’s members has on the Company’s
ability to compete and make a reasonable return on its in-
vestment. Therefore the Union commits that in no event will
bargaining between the parties erode current solutions and
concepts already in place or scheduled to be implemented
January 1, 2004 at Dana’s operation which include premium
sharing, deductibles, and out of pocket maximums. The par-
ties are further committed to finding workable solutions to re-
duce these ever-increasing healthcare costs and mutually
agree to further explore other avenues, including legislative
initiatives, in the healthcare care arena that could lead to a re-
duction of these costs for the Company and its employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 270
The parties agreed that any collective-bargaining agreements
would last for at least 4 years. The Letter of Agreement con-
tained procedures for the parties to use if they were unable to
reach a contract on their own; it culminates in interest arbitra-
tion.
They agreed:

[T]hat in labor agreements bargained pursuant to this Letter,
the following conditions must be included for the facility to
have a reasonable chance to succeed and grow.

Healthcare costs that reflect the competitive reality of
the supplier industry and products(s) involved.
Minimum classifications.
Team-based approaches.
The importance of attendance to productivity and qual-
ity.
Dana’s idea program (two ideas per person per month
and 80% implementation.
Continuous improvement.
Flexible Compensation.
Mandatory overtime when necessary (after qualified
volunteers) to support the customer.

The Letter of Agreement provides for a procedure to alleged
violations of the agreement. It contains no strike—no lockout
commitments by the UAW and Dana that are triggered when
the UAW requests the list of employees described above.
The Letter of Agreement call for the creation of a national
partnership steering committee composed of three members
from both parties. The committee is to meet as needed:

[T]o review and discuss the labor agreements being bargained
by the parties with the goal of ensuring that the labor costs of
those agreements are not materially harming the financial per-
formance of the facilities that they cover.

It provided that when the phase 1, level 13 facilities were orga-
nized the committee would meet to review and discuss the
overall impact of the labor agreements on these facilities. In
order for the UAW to commence organizing the phase 2, level
1 facilities a majority of the committee had to concur that the
overall impact of the labor agreements must not have materially
harmed the financial performance of those labor agreements; if
the committee deadlocks the matter is sent to a neutral third
arty for resolution. The Union also agreed not to conduct or-
ganizing campaigns at more than seven level 1 facilities at any
one time absent mutual agreement.
On August 13, Dana issued a press release announcing the
Agreement with the UAW. The release, however, did not de-
3 The Letter of Agreement places Dana’s facilities into three levels.
Level 1 facilities are generally those which manufactured products for
the big 3 automobile manufacturers; 27 facilities are placed at this
level. Level 2 are generally those facilities that did not manufacture
products for the big 3; 39 facilities are listed at this level. Finally, level
3 were generally those facilities that manufactured or assembled prod-
ucts sold to nonunion foreign owned assembly facilities; four facilities
are in this category. Level 1 facilities were further divided into two
phases. Fourteen facilities were placed in phase 1 and the rest were left
for phase 2. The Letter of Agreement, for the most part, applies only to
level 1 facilities.
scribe the details of the Agreement as it noted that the terms of
the Agreement were not disclosed by agreement of the parties.
In December 2003, the UAW requested a list of employees for
the St. John facility, thereby triggering its no-strike obligations
in the letter of agreement as described above.
III. ANALYSIS
A. Procedural Dismissal
As indicated above, the complaint does NOT allege that Da-
na has unlawfully recognized the UAW. Dana, in its brief,
states:

[T]he narrow issue presented in this case is whether the Letter
of Agreement entered into by Dana and the [UAW] on Au-
gust 6, 2003 constitutes an unlawful pre-recognition contract
in violation of the [Act] [emphasis added].

I agree that the complaint raises only that narrow issue. Yet in
his brief, the General Counsel apparently recognizing the need
in this case to establish unlawful recognition in order to prevail,
argues that Dana’s actions amounted to recognition of the
UAW. It is important to note that the General Counsel does not
argue that the neutrality and assistance provisions of the letter
of agreement violate the Act. Rather, the General Counsel
argues that Dana and the UAW:

[N]egotiated substantive terms and conditions of employment,
most of which were concessionary in nature, in exchange for
card check and neutrality provisions that would expedite the
recognition process at the plant. Dana’s granting of exclusive
bargaining status to the UAW when it did not represent a ma-
jority of employees at the St. Johns plant constituted interfer-
ence with its employees’ Section 7 rights and unlawful sup-
port of the union in violation of Section 8(a)(1) and (2) of the
Act. The UAW’s conduct in accepting recognition violated
Section 8(b)(1)(A) [emphasis added].

Section 102.15 of the Board’s Rules and Regulations requires
that the General Counsel issue a complaint that contains “a
clear and concise description of the acts which are claimed to
constitute unfair labor practices . . . .” The General Counsel did
not plead the “act” of recognition as unlawful. The General
Counsel has failed to comply with the Board’s Rules by failing
to plead unlawful recognition in the complaint. It follows that
the complaint be dismissed because the General Counsel makes
no argument that a violation of the Act has occurred in the ab-
sence of unlawful recognition.
B. Dismissal on the Merits
In the alternative, I shall address the contentions made the
General Counsel in his brief in the event that the Board might
find that useful. As the General Counsel correctly points out, it
is well settled that an employer violates Section 8(a)(2) and (1)
of the Act when it grants recognition to a union at a time when
the union does not represent a majority of employees in the
recognized unit and a union violates Section 8(b)(1)(A) when it
accepts recognition under those circumstances. Ladies Gar-
ment Workers v. NLRB, 366 U.S. 731 (1961). There is no evi-
dence in this case that Dana verbally or in writing recognized
the UAW as the bargaining representative for the St. Johns

DANA CORP. 271
employees; to the contrary the Letter of Agreement explicitly
states that recognition has not been granted and the Respond-
ents have confirmed that throughout these proceedings.
The General Counsel and the Charging Parties argue that the
UAW and Dana went beyond discussing tentative contract
proposals in the Letter of Agreement and made substantive
agreements on the terms and conditions of employment of em-
ployees. The General Counsel argues that by virtue of this
conduct Dana recognized and bargained with the UAW. Thus,
the question becomes whether Dana granted recognition to the
UAW by entering into the letter of agreement notwithstanding
the disclaimers to the contrary. The letter of agreement does
indeed touch upon terms and conditions of employment. In
some ways the letter of agreement is quite specific. For exam-
ple, as set forth above in more detail, the Letter of Agreement
commits the parties to negotiate a 4-year collective-bargaining
agreement and to use interest arbitration to reach a contract if
they are unable to do so.4 The General Counsel and the Charg-
ing Parties argue that the Letter of Agreement also limits the
employees’ right to strike from the date the UAW requests a list
of employees at the plant. But this provision by its terms
waives only the UAW’s right to call a strike; the employees’
Section 7 right to concertedly strike remains intact. Moreover,
because I conclude below that the UAW has not been recog-
nized and is not the bargaining representative of the employees
it cannot by operation of law waive any rights of the employ-
ees. In other ways the Letter of Agreement sets forth general
principles that the parties recognize, such as the UAW’s com-
mitment that bargaining would not “erode current solutions and
concepts” concerning health insurance such as premium shar-
ing, deductibles, and out of pocket expenses and that labor
agreements bargained pursuant to the Letter of Agreement must
include healthcare costs that reflect the competitive reality of
the supplier industry and products(s) involved, minimum classi-
fications, team-based approaches, the importance of attendance
to productivity, and quality, Dana’s idea program (two ideas
per person per month and 80-percent implementation, continu-
ous improvement, flexible compensation, and mandatory over-
time when necessary (after qualified volunteers) to support the
customer for the facility to have a reasonable chance to succeed
and grow.
But other typical and essential elements of recognition are
entirely absent from the Letter of Agreement and the facts of
this case. There is no evidence that Dana deals with the UAW
concerning employee grievances. Importantly, Dana remains
free to make changes in terms and conditions of employees
without first notifying and on request bargaining with the
UAW. This is utterly at odds with the notion that Dana has
recognized the UAW. There is no concept of partial recogni-
tion in labor law; there is either recognition or there is not. Nor
can it be said that the Letter of Agreement constitutes a collec-
tive-bargaining agreement from which recognition can be in-
ferred. The Letter of Agreement does not deal with significant
matters such as wages, pensions, grievances and arbitration,
4 AS the UAW points out, interest arbitration is not considered a
mandatory subject of bargaining. Sheet Metal Workers Local 59 (Em-
ployer Assn.), 227 NLRB 520 (1976).
vacations, union security, etc. Moreover, in the complaint the
General Counsel describes the Letter of Agreement as setting
forth terms and conditions “to be negotiated in a collective-
bargaining agreement. . . .”
The General Counsel and the Charging Parties rely heavily
on Majestic Weaving Co., 147 NLRB 859 (1964), enf. denied
on other grounds 355 F.2d 854 (2d Cir. 1966). In that case, the
Board held that the employer violated the Act by recognizing
and negotiating a tentative contract with a union when the un-
ion did not have majority support of the employees. The con-
tract was conditioned upon the union there gaining majority
support from the employees. But I conclude that Majestic
Weaving is not controlling for at least two reasons. First, the
Board there concluded that the employer had recognized the
union apart from negotiating a contract; that is the very element
missing in this case. Second, the collective-bargaining contract
there was complete and whole; the Letter of Agreement in this
case is a far cry from a collective-bargaining agreement. The
General Counsel notes that in American Bakeries Co., 280
NLRB 1373 1374 fn. 5 (1986), the Board affirmed the judge’s
decision that included a footnote stating that in Majestic Weav-
ing:

The Board has even held that bargaining prior to the achieve-
ment of the union’s majority status is violative despite the fact
that the contract is not enforced or is conditioned upon the un-
ion’s ability to demonstrate majority standing at some later
time.

But American Bakeries involved allegations of unlawful recog-
nition and bargaining and the judge’s remarks are classic dicta.
Likewise in SMI of Worcester, Inc., 271 NLRB 1508 (1984),
the Board found violations based upon recognition and negotia-
tion of a complete collective-bargaining agreement at a time
when the union did not represent a majority of the employees.
The Board specifically found it unnecessary to consider the
judge’s analysis of any prerecognition bargaining, an analysis
that included reference to Majestic Weaving, because no such
violation was alleged in the complaint. Thus, SMI contributes
little to the resolution of the issues in this case.
The General Counsel argues that the confidentiality provi-
sion in the letter of agreement “would have a tendency to fur-
ther magnify the impression in the minds of employees that the
UAW and Dana had a special insider relationship” and “would
necessarily impress upon employees the idea that the UAW had
already been recognized by Dana.” However, the complaint
does not allege that Dana and the UAW independently violated
the Act by conveying the impression to employees of unlawful
recognition so to that extent I need not resolve that matter. I do
note, however, that it is not unlawful for an employer to indi-
cate its preference for a union. Coamo Knitting Mills, 150
NLRB 579, 581, 595 (1964).
Finally, the General Counsel and the Charging Parties rely
on offers of proof made at the hearing. I have again considered
the offers and again conclude that proffered evidence is not
relevant to the allegations of the complaint.
Because the evidence fails to show that Dana has recognized
the UAW for employees at the St. Johns facility, I shall dismiss
the complaint.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 272
C. Alternative Dismissal
Dana and the UAW rely on Kroger Co., 219 NLRB 388
(1975), to argue that even if they bargained with each other in
reaching the letter of agreement that conduct was lawful. In
Kroger the Board found lawful provisions in a collective-
bargaining contract requiring an employer to recognize the
union as the bargaining representative of employees at addi-
tional, future facilities, and apply the collective-bargaining
agreement to those employees. The Board made clear that the
application of the contract was conditioned upon the union
receiving majority support at the new facility. Citing Pall Bio-
medical Products Corp., 331 NLRB 1674, 1675–1676 (2000),
enf. denied on other grounds 275 F. 3d 116 (D.C. Cir. 2002),
the General Counsel seeks to distinguish Kroger by limiting its
holding to instances where an entire existing collective-
bargaining agreement is extended to a new unit of employees.
There the Board found, among other things, that the employer
violated Section 8(a)(5) by failing to adhere to a letter of
agreement whereby the employer agreed to recognize the union
under certain circumstances at another facility. That case has
little bearing on this issue in this case. Here, the UAW and
Dana have an existing collective-bargaining relationship with
several contracts covering over 2000 employees. The General
Counsel concedes:

If the UAW had turned instead to its represented Dana facili-
ties and bargained with the employer to extend its master or
other agreements to the St. Johns employees, its actions
would have been lawful.

It seems to me that if Dana and the UAW are free to extend
their existing agreements to cover the St. Johns employees they
should be free to bargain for less than a full extension so as to
allow greater employee participation in the terms and condi-
tions of employment at the new facilities. I therefore conclude,
in the alternative, that if the Letter of Agreement was the result
of bargaining, then such bargaining was lawful under Kroger
and this case should be dismissed.5
Finally, the General Counsel argues that if the letter of
agreement is found lawful under Kroger:

5 The Charging Parties argue that if Kroger supersedes Majestic
Weaving as it interprets the latter case, then Kroger should be over-
ruled. I am without authority, of course, to overrule existing precedent.
unions could just go to employers and offer up concessions at
the expense of employees they do not and may never repre-
sent. Those negotiations could take place without the em-
ployees even knowing about it, and the agreements, as in this
case, could be kept confidential. An employee might never
know that the union made these concessions in order to win
an expedited election or card check.

This, however, is not such a case. Dana and the UAW publicly
announced the existence of the Letter of Agreement even if
they did not reveal its precise terms. By now all employees
who are interested will know of the specific terms of the Letter
of Agreement. Employees are free make what they will of the
Letter of Agreement in deciding whether or not to support un-
ion representation. And what the General Counsel calls con-
cessions might be viewed by some employees as a mature
recognition of existing economic realities in the automotive
parts industry.
The Charging Parties make a number of arguments not en-
compassed by the complaint. For example, they argue that a
prerecognition agreement violates Section 7 because it “inher-
ently constitutes a threat of reprisal or promise of benefit based
on employee exercise of protected rights.” They also argue that
the UAW will violate its duty of fair representation if and when
it is recognized by Dana. The General Counsel controls the
complaint and he has made no such allegations. The Charging
Parties also argue that “the UAW did not obtain, or even at-
tempt to obtain, any benefits or improvement to employees’
working conditions in the Letter of Agreement” (emphasis in
original). But this argument is beside the point; the employees
will decide whether they desire union representation and they
will be free to assess letter of agreement in that process.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The complaint is dismissed.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulation, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.