New Disciplinary Standards Must Be Negotiated

Employers who operate in a collective bargaining environment are restricted in their ability to make changes in past practices in the areas that are “mandatory” for collective bargaining. Mandatory subjects of bargaining are typically set by state statute, and are usually captured by some version of the rubric “wages, hours, and terms and conditions of employment.”

Where a topic is a mandatory subject of bargaining, the employer is not free to make a change in the area without first negotiating with the union unless the union has somehow waived the right to bargain over the change. Such waivers typically occur when a collective bargaining agreement grants to the employer the right to make a change in a particular area or when the union does not assert the right to bargain in a timely fashion.

Not often recognized is the fact that most states hold that disciplinary standards are a mandatory subject of bargaining, and may not be unilaterally changed by an employer. A recent case from Vermont illustrates these principles.
The case involved the Vermont Department of Corrections, which in 2006 issued a revised “disciplinary-guidance memorandum” to all employees. The memorandum, which the Department required employees to sign, listed examples of misconduct “which will lead to severe discipline up to and including immediate termination.”

The Vermont State Employees’ Association, the labor representative for the corrections officers, filed an unfair labor practice charge against the Department, asserting that the memorandum violated the Department’s obligation to bargain over mid-term changes in mandatory subjects of bargaining. The Vermont Supreme Court agreed with the Association.

The Court held that “matters pertaining to employee discipline clearly concern the employer-employee relationship and therefore must be bargained. The memorandum did not merely restate existing standards. The Department’s distribution of the disciplinary memorandum set new disciplinary standards by prohibiting conduct not previously prohibited by the collective bargaining agreement and work rules, and by attaching likely disciplinary outcomes to both new and existing prohibited conduct. The memorandum unilaterally defined and broadened the circumstances under which employees could expect progressive discipline to be bypassed.”

The Department argued that the management rights clause in its collective bargaining agreement allowed it to distribute the memorandum. The Court disagreed, finding that “management rights are expressly limited by the balance of the collective bargaining agreement and by statute. Disseminating the memorandum in the manner in which it did, the Department changed disciplinary standards and asked employees to acknowledge those changes such that the Department could then hold employees accountable for them. The unfair labor practice was complete upon the unilateral distribution of the memorandum for signature.”

Vermont State Employees’ Association v. State of Vermont, 2009 WL 350636 (Vt. 2009).

This article appears in the April 2009 issue