Public employers in Pennsylvania beware: if you implement an attendance policy designed to get your employees to show up for work, you may commit an unfair labor practice! If your employees are represented by a labor union, and your policy outlines disciplinary action, then you must bargain with the appropriate union before issuing discipline under the policy. The employer in Chester Upland Sch. Dist. v. Pa. Labor Relations Bd., learned that the hard way.
In that case, the public school district unilaterally adopted a new attendance and punctuality policy. The new policy applied progressive discipline to employees who reached a certain number of absences due to personal illness. The updated policy was adopted shortly after the expiration of a collective bargaining agreement between the district and its employees.
Upon learning of the change, the employees’ union filed an unfair labor practice charge, arguing that the district committed an unfair labor practice by adopting the policy without engaging in collective bargaining. The union pointed to the prior collective bargaining agreement’s sick leave provisions, which provided each employee with eleven sick days per school year and was silent on discipline. The district countered that the updated policy did not impose a new source of discipline; employees were always subject to discipline for attendance violations. Rather, according to the employer, the new policy simply advised employees as to how attendance issues were tracked for disciplinary purposes.
The Pennsylvania Labor Relations Board rejected the employer’s arguments, finding that the district committed an unfair labor practice by unilaterally changing the terms and conditions of employment through adopting the new attendance policy. The district appealed to the Commonwealth Court, which upheld the Board’s determination. The Court provided several reasons for doing so.
First, it recognized the PLRB’s long history of treating sick leave policies as mandatory subjects of collective bargaining. Second, the Commonwealth Court held that new policy did not simply explain how the district tracked absences for disciplinary purposes; instead, it specifically imposed progressive discipline for using sick days. An employer’s unilateral changing of terms and conditions of employment, explained the Court, is an unfair labor practice regardless of whether it happens during the term of a CBA, following the expiration of a CBA or during the course of negotiations. Moreover, the new policy directly conflicted with the express terms of the collective bargaining agreement, which did not provide for disciplinary action.
This case serves as an important reminder to public employers in Pennsylvania that when adopting new policies, a careful examination of the appropriate collective bargaining agreements is required. Before implementing new rules that can result in disciplinary action, negotiation is typically required. Adopting new disciplinary rules without engaging in collective bargaining will not withstand the scrutiny of the PLRB or Pennsylvania courts.
