Granting A Day Off to Non-Union Employees Is Not Necessarily Anti-Union Animus

In Merck, Sharp & Dohme Corp., the National Labor Relations Board held that an employer was not motivated by unlawful anti-union animus when it prevented most of its unionized workforce from participating in its company-wide Appreciation Day, a paid day off before Labor Day weekend in 2015.

An administrative law judge (ALJ) previously held that the employer’s decision discriminated against union-represented employees, in violation of the National Labor Relations Act. In a 2 to 1 decision, the Board majority reversed the ALJ and found that the employer’s decision was a reflection of the “competing forces and counteracting pressures” inherent in collective bargaining relationships. The employer cited the unions’ past refusals to accept the employer’s proposed mid-term contract modifications concerning year-end holidays as one of its reasons for not extending Appreciation Day to the unionized employees. The Board reasoned that the employer’s position was not evidence of anti-union animus, but, rather, a lawful message that the employer, too, would stand firm and the unions would have to live with the limitations of their contractual benefits along with their advantages. Accordingly, the Board dismissed the Complaint.