Sixth Circuit upholds NLRB ruling

Michael P. Tremoglie Aug. 27, 2012, 10:28am

CINCINNATI (Legal Newsline) - The U.S. Court of Appeals for the Sixth Circuit on Thursday upheld a 2010 National Labor Relations Board ruling.

The NLRB ruling said that an employer and union did not violate federal labor law by entering into a pre-recognition agreement, which established bargaining principles if union representation was voted for by employees.

This question determined by the Court was whether, before employees officially recognize a union, a union and an employer may set forth general terms, including provisions related to healthcare benefits and future collective bargaining agreements that are subject to further negotiation but may become binding if arbitration is necessary.

Dana Companies and the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO (UAW) entered into the Letter of Agreement which included potential contractual various should UAW be selected as their exclusive collective-bargaining representative at a Michigan plant.

After the agreement was signed, several workers filed charges with the NLRB. They alleged that the agreement constituted an unlawful recognition of the union. The NLRB, in a 2-1 vote, said the agreement was not unlawful and cited many similar arrangements.

The Court concurred with the NLRB, citing that the agreement "did no more than create a framework for future collective bargaining" and that "the Board was within its discretion to allow some substantive terms to be determined between the employer and union prior to recognition, as long as that agreement did not ultimately impact employees' choice regarding union representation."

It also said that the Administrative Law Judge "determined that Dana had not granted recognition to a minority union, which would have been an unfair labor practice."

The appeals court concluded, "Because the National Labor Relations Board, which sets labor policy, reasonably determined that the agreement did not impermissibly restrict employee choice, we uphold the Board's dismissal of the petitioners' complaint."

John Raudabaugh, a former NLRB member and labor law professor at Ave Maria University, believes the ruling does the exact opposite. He condemned the ruling. He feels it infringes on the rights of the worker.

"The Sixth Circuit's deferral to the NLRB's decision is abysmal. Any agreed-upon construct, even without agreement on a specific term or condition, prior to achieving majority status compromises employee rights," Raudabaugh said.

"Pre-recognition discussions reflect (1) labor's commitment to paternalism - that it knows better what employees want even before discussing issues with them during an open campaign and (2) labor's leverage in certain unionized industrial silos to present supplier industry employers, already shackled to the end user/buyer in the supply chain, to the nuclear threat -take it or face a corporate campaign impugning you to the end user/buyer/monopsony/original equipment manufacturer and losing the next supply contract."

Ultimately, the facility was sold by Dana.

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