Yes, Virginia, there is a Santa Claus, and the NLRB does govern when and how a non-union company can give raises to its non-union workforce. Here, the NLRB ruled that a company that gave raises to non-union employees, seemingly out of spite that some employees voted to become members of a union, was unlawful.
A non-union company had not planned to grant wage increases to employees in 2010. The employees voted for a union in August 2010 and one day before it was certified, the company gave many of its employees wage increases ranging from $1 to $2 an hour. The National Labor Relations Board concluded that the company excluded newly union-represented workers from the pay increases without offering them any explanation. In its decision – five years since the increase was given – the Board explained that a company is not required to give unionized employees the same wages as unrepresented employees if the company is not acting with an unlawful motive. Here, the Board concluded that the wage increases given were “driven by the union campaign.” The Board commented that the company posted announcements of the wage increases in the work locations of newly union-represented workers, but it did not assure those employees that they would have an opportunity to receive an increase through bargaining. The Board interpreted this as the company denying these employees increases because it opposed their move to unionize.
One Board member, Harry Johnson (a management-side labor lawyer), dissented, stating that he disagreed with the Board’s reliance on the company’s failure to reassure union-represented workers that they could negotiate the wage increases through bargaining. I agree with Harry. A company should not have to tell union-represented employees what they can and cannot seek to obtain through negotiations; that’s the union’s job.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.