Dana Corporation, Inc.

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.