Exclusion of union employees - 410(b)(3)(A)

[holdco]

Hello everyone

A quick question. A company is currently negotiating a collectively bargained agreement with a union. At the same time, they are instituting a new 401(k) plan, and wish to know if the exclusion under Code section 410(b)(3)(A) (allowing for collectively bargained employees to be excluded) will apply when the CBA is not finalized.

Has anyone come across this issue before? Any advice or guidance will be much appreciated. Thank you!