Excluding union employees

[Guest JMN]

Assuming we can satisfy coverage and nondiscrimination tests, is it possible to exclude union employees from participating in a DC plan, regardless of whether they are covered under a CBA? For example, if union is certified during the third month of the plan year, can they be excluded even if there is not yet a CBA? They would not meet the definintion of "collectively bargained employees" and consequently could not be disregarded for purposes of testing, but is it otherwise permissible to exclude union members as a class of employees?

[Guest Sieve]

From ERISA perspective, Yes. But can you do that from a labor perspective (i.e., is it an unfair labor practice)?

[Guest JMN]

From ERISA perspective, Yes. But can you do that from a labor perspective (i.e., is it an unfair labor practice)?

That's exactly what I thought. Thanks.