Question: During the negotiations between the employer, Spina Mfg., and the union representing Spina's employees, the union representative noted that the company did not have an Employee Assistance Program (EAP), although it did have a drug and alcohol policy. Parker, Spina's manager replied that the company's health insurance program addressed such employee issues and said that he did not favor instituting an EAP program. After a fatal employee accident in the workplace, Parker contacted TriCity Family Services, a local social services agency, to launch an EAP program for employees. Parker did not notify the union about the EAP before agreeing with TriCity to set up the program. At the next negotiation session, Parker gave the union representatives a brochure and related information about the EAP program, and told them that he instituted the program as result of the workplace accident.

At the negotiation session held the next day, Parker asked the union representatives whether they had read the EAP information. The union representatives answered that they had not yet done so. The union did not offer a counterproposal to the EAP established by Parker. The union filed an unfair labor practice charge with the NLRB, alleging that the employer's unilateral decision to create the EAP was in violation of Section 8(a)(5). Spina's managers responded that its actions in creating the EAP were motivated solely by the desire to provide the employees with immediate grief counseling in light of the death of one of their fellow employees in the workplace accident. They also said that they did notify the union that they were willing to discuss and negotiate the program during their ongoing negotiations. Did Spina's unilateral creation of the EAP violate Section 8(a)(5)? Explain your answer.