It seems counterintuitive that an employer can’t do something nice for its employees, but sometimes you truly are damned if you do and damned if you don’t. Take, for instance, an employer’s obligations to union members. One cardinal rule is that employers cannot unilaterally change the terms and conditions of employment. But, does that include changes that are nice for employees?
Such was the question for Merck, Sharp & Dohme Corp. After exceeding revenue goals, the company wanted to reward its employees for a job well done. It decided to give everyone an extra day off. Everyone, that is, except union members. The union contract, like most, listed the days off that its members were entitled to receive. It decided that to grant the extra time off without bargaining would be a unilateral change in a term of employment (holidays or days off) and the union had shown little interest in the past to engage in mid-term bargaining.
[I pause here in my description of the facts in this case to interject my opinion of what I think was going on here. It seems to me that the employer had wanted to make some mid-term changes in the collective bargaining agreement in the past and the union told them to take a hike because it was under no obligation to engage in mid-term bargaining over terms of the existing agreement. The employer likely decided that if the union wouldn’t agree to their mid-term changes, it wasn’t interested in making a mid-term contract change that benefited the members either. This is just me reading between the lines of this case and knowing that sometimes you make decisions out of stubbornness and sometimes you pay the price to be stubborn. Plus, it doesn’t take a wizard to infer that the union and employer did not have a friendly relationship.]
The union filed an unfair labor practice charge, alleging that denial of the extra day off was based on retaliation and anti-union animus, claiming that the only reason that union employees were not given the extra time off was that they had chosen union representation. The employer argued that the union had previously refused to engage in mid-term bargaining and it was simply following the letter of the collective bargaining agreement in terms of days off for members.
While the NLRB General Counsel issued a complaint in this case, the NLRB Board found in favor of the employer, holding that there was a history of the union denying mid-term bargaining and contract changes, which would include changes that benefitted the employees and that the union had failed to provide evidence that the substantial or motivating factor in denying the extra day to union members was based on animus for forming a union.
Employers should note that the prohibition on unilateral changes to union contract terms does include changes that benefit either the employer or the employees. Absent a history of mid-term contract changes or evidence that withholding additional across the board benefits to union employees only is in retaliation of their union activities, then an employer is free to do so. Employers should be cautioned of the price for such stubbornness, though. They can face union backlash if they grant an additional benefit and certainly face backlash if they don’t.
While this employer obviously wanted to show gratitude to employees for a job well done, it may have also diminished some of the sweetness of their largess when it didn’t offer the same bonus to union employees. And, it obviously did not help improve the union/management relationship. Only the employer knows whether it was worth withholding the day off to union staff; we don’t know all of the history and circumstances that led to this employer’s decisions. Employers should always try to look at the bigger picture when they have potentially something nice to give employees, knowing that they don’t have to give anything extra but evaluating whether it is worth it anyway.