Disciplining Employees in a Newly Unionized Setting

July 17, 2020  |  Scott M. Lepak

The time after a union is voted into place and before the parties have entered into a collective bargaining agreement is often viewed as a period of great uncertainty. It is typically a time of considerable posturing as the employer and union seek to establish their respective authority as they work through this new relationship. There is often disagreement on what constitutes a management right (that does not need to be negotiated) as opposed to a mandatory subject of bargaining (that must be negotiated). Read on to learn more about disciplining employees in a newly unionized setting.

A typical disputed area is the employer’s right to determine how to discipline employees before a first union contract is finalized. This area received significant clarity from the National Labor Relations Board (NLRB or Board) on June 23, 2020, as it applies to private sector employers.¹ In 800 River Road Operating Company, LLC d/b/a Care One at New Milford and 1199 SEIU, United Healthcare Workers East, 369 NLRB No. 109, the Board issued a decision stating that upon commencement of a collective-bargaining relationship, employers do not have an obligation to bargain prior to disciplining bargaining unit employees in accordance with an established disciplinary policy or practice.  This Care One at New Milford decision significantly and specifically overturned a 2016 NRLB decision to the contrary commonly noted as Total Security.

The impact of this decision must be viewed in the context of the overall negotiation requirements under federal law. In negotiating a first union contract, the employer has a duty under Section 8(a)(5) and (d) of the National Labor Relations Act to bargain in good faith, upon request, with the certified union with respect to wages, hours, and other terms and conditions of employment. Briefly stated, employers and unions are required to maintain the status quo. This means the employer must refrain from making a material change regarding any term or condition of its employees’ employment that constitutes a mandatory subject of bargaining, unless notice and an opportunity to bargain regarding a contemplated change to the status quo is provided to the union  (NLRB v. Katz, 369 U.S. 736, 1962).

Where employers have a prior disciplinary policy, the status quo requirement rationally applies so the existing policy is used during the period when the parties are negotiating over a first contract. However, the policy typically provides considerable discretion to the employer. The question in Care One at New Milford was whether the employer’s retained discretion in the policy prevented it from being applied without first bargaining with the union. The policy in that case was relatively standard in form and substance:

DISCIPLINARY ACTION

 If your conduct is unsatisfactory, your Supervisor may provide guidance and support to help you make the necessary corrections. The Center has developed a disciplinary action process that focuses upon early correction of misconduct with the total responsibility for resolving the issues and concerns in your hands. Your Supervisor is there to provide support and coaching.

 The following highlights a list of actions that the Center may use while administering discipline. Please note that these are guidelines only, and are not intended to imply a series of “steps” that

will be followed in all instances. Any of the disciplinary actions described below, including termination, may be initiated at any stage of the process depending on the nature of the specific inappropriate behavior, conduct, or performance and other relevant factors.

• Verbal or Written Warning
• Suspension or Suspension Pending Further Investigation
• Final Written Warning
• Termination of Employment

In reviewing the policy in Care One at New Milford, it was notable that it referenced several layers of possible discipline, outlined a number of factors that may be used, and noted that it is not “progressive.”² It is not a policy that simply notes that the employer can do whatever it wishes.
In applying this Care One at New Milford determination of employer authority, it is important to note that it only applies in a situation in which there is an established prior disciplinary practice or policy. It does not apply to grant an employer a new management right to create and implement a disciplinary policy after a union is voted into place where one did not previously exist. In an instance in which there was no prior disciplinary policy or practice, the employer’s rights will be determined in the context of its general duty to negotiate over terms and conditions of employment.
It is also important to note that application of an established prior disciplinary policy will focus on whether an employer’s individual disciplinary action is similar in kind and degree to what the employer did in the past within the structure of the established policy or practice. The Board in Care One at New Milford stated that:

[i]n order to maintain the status quo, an employer must continue to make decisions materially consistent with its established policy or practice, including the use of discretion, after the certification or recognition of a union. To do otherwise would constitute a change from its preexisting policy or practice.

In other words, any subsequent grievance over the disciplinary action will include a focus of whether the existing policy or practice was followed as well as a focus on the conduct vs. punishment element of discipline cases.
The primary lesson from the Care One at New Milford case is that a carefully crafted disciplinary policy that has been established and followed for a considerable period of time may continue to be applied during the time while the employer and union are negotiating over a first contract.

This creates a strong incentive for nonunion employers to have such a policy in place and follow it so that in the event that the workforce becomes unionized, the policy will remain as part of the status quo during the important period up to entering into the first union contract.
In the event that you have questions or would like further guidance on this subject, please feel free to contact Scott.

¹Public sector unions are typically covered by State laws (or in the case of federal employees, special federal laws) that may mirror or differ from federal law. How this decision will apply, if at all, to public sector bargaining units will be determined by reference to the applicable state law.
²Strict progressive discipline is commonly viewed as requiring the employer to start out at the beginning lowest level and then move to the next level based on repeat violations.