NLRB: It’s Not Anti-Union ‘Punishment’ To Give Non-Union Employees More

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“‘Animus’ is not defined by a party not liking the outcome.”

Sometimes, it seems like unions try to pick and choose their arguments.

One the one hand, unions like to boast of higher wages and benefits. However, when an employer rewards its non-union employees with an extra benefits not provided to its unionized employees, unions complain that the employer must be ‘anti-union.’



Here’s a case in point, as described by Mark Theodore, a labor attorney with the firm Proskauer:

Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite.  Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process.  A common situation arises when an employer makes changes in the workplace, whether it is a change to a payroll practice or offering new benefits.  The question is whether the change applies to the union-represented workforce.  Without any other circumstances, the answer generally is “no,” the change does not apply automatically to the represented group of employees for the simple reason that the change must be bargained.


The NLRB recently faced a situation where a group of unions claimed that a benefit granted to the non-union employees should apply to the bargaining unit employees, and that the employer’s failure to do so was unlawful.

In Merck, Sharp & Dohme Corp., 367 NLRB No. 122 (May 7, 2019), the employer has 23,000 employees in the United States, approximately 2700 of whom are represented by various unions in different plants.  At the time of the events of the case, none of the collective bargaining agreements were under negotiation.

Predictably, a (pro-union) Administrative Law Judge ruled against the employer, reasoning that the employer’s decision to exclude the union represented employees was motivated by union animus, finding “this motive represents straightforward punishment of union employees in retaliation for past protected activity under the Act” for the unions having refused to mid-contract changes in the past.

Upon appeal of the ALJ’s decision, the National Labor Relations Board reversed the decision and dismissed the unfair labor practice complaint, stating (in part):

“The message sent by the Respondent’s action was clear: if the Unions were unwilling to entertain proposed midterm modifications and insisted on adhering to the terms of the contracts, the Respondent, too, would stand firm, and the Unions were going to have to live with the limitations of their contractual benefits along with their advantages.”

In other words, as labor attorney Theodore concludes: “‘Animus’ is not defined by a party not liking the outcome.”

Read the entire decision:

NLRB Merck Decision 2019 on Scribd




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