Smaller Bonuses for Union Employees Not Unlawfully Discriminatory

A union filed an unfair labor practice charge alleging that a company discriminated against union-represented employees by paying them a lesser bonus than non-union employees. The Employer argued it did not discriminate in paying the lower bonus amount to union employees because negotiated wage increases for union employees exceeded increases granted to non-union employees.

The ALJ found that the employer’s payment of an end-of-year bonus was consistent with past practice (and despite no mention of such payment in a recently negotiated collective bargaining agreement) did not discriminate against the union-represented employees in violation of Section 8(a)(3) of the NLRA.

The ALJ found no discrimination under Wright Line because there was no independent evidence that the respondent was motivated by an anti-union purpose in paying the lesser amount to union employees. Rather the respondent tied the lesser amount to the higher wage increase earlier received by union represented employees.

The ALJ also analyzed whether the paying of the lesser amount to union employees constituted inherently destructive conduct under Great Dane Trailers, and thus supported a discrimination theory. She concluded it did not, because any harm due to the lower bonus payment to union employees was viewed as slight because of the higher bargained-for wage amounts received by union employees.

The ALJ also found that the employer failed to give the union adequate notice of the bonus payment and therefore failed to provide the union an opportunity to bargain over it.

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