The Negotiability Of A Disciplinary Matrix

Disciplinary matrices are a curious feature of public safety employee labor relations. The interest in matrices waxes and wanes over time, with some employers adopting them even as other employers are discarding them. What is not always recognized is that in states with collective bargaining, the adoption or abandonment of a disciplinary matrix is very likely a mandatory subject for bargaining, and cannot be done unilaterally by an employer. A recent Pennsylvania case illustrates this principle.

In February 2013, Steven Wheeler became the Chief of the Middletown Borough, Pennsylvania Police Department. He soon began the process of writing a new departmental policy manual. The Police Department was operating under a manual with some policies that had been in place since 1984 and other policies added as time progressed.

On April 25, 2013, the Chief sent a draft of a new policy manual to the Middletown Borough Police Officers’ Association. When a meeting between the Association and the Chief failed to produce agreement, the Department implemented the new policy manual on October 1, 2013.

The Association filed an unfair labor practice complaint against the Borough, alleging (among other things) that changes in the manual’s disciplinary policies were mandatory for collective bargaining and could not be unilaterally implemented by the Borough. Pennsylvania’s Labor Relations Board agreed with the Association and ordered the Borough to withdraw the newly-issued disciplinary policies.

The key issue in the dispute concerned the maximum penalties for violations of the Department’s code of conduct. The prior policy listed 43 separate offenses, which were divided into three broad classes. Class III offenses “generally” resulted in verbal warnings or written reprimand. Class II offenses could “lead to any action other than dismissal.” Class I offense could lead to any disciplinary action up to and including termination.

The new policy manual abandoned the different classes of offenses. Instead, the new policy provided that the Department “reserves the right to administer any level of discipline it determines, in its sole discretion, to be appropriate given the circumstances and the severity of the infraction.”

The Labor Board noted that it had held “that matters of employee discipline and disciplinary procedures, including the institution of a new system of discipline or a significant change from a previously existing system, are mandatory subjects of bargaining. The Borough’s old policy divided offenses into Class I, Class II and Class III, along with corresponding recommended maximum penalties for the first, second and third offense committed in each class. The new policy does not contain any language setting forth recommended maximum penalties and, in fact, provides the Borough the right to administer any level of discipline that it determines to be appropriate. In City of Reading, we held that the employer violated its duty to bargain when it provided a Board of Ethics with broad discretion to impose any level of discipline contrary to the parties’ disciplinary code. As in City of Reading, the new policy here grants the Borough the same type of discretion to impose any level of discipline, thereby significantly changing the Borough’s previous disciplinary policy which provided for recommended maximum penalties.”

The Borough argued that the Association waived the right to bargain over the disciplinary policy through agreeing to a management rights clause retaining its right concerning “the suspension, demotion, or discharge of policemen according to the provisions of the Borough Code.” The Labor Board found this language insufficient to constitute a waiver of the Association’s bargaining rights. As the Board saw it, “this language generally states the Borough’s authority to discipline its police officers under the Borough Code and is not sufficiently specific to indicate that the Association expressly and intentionally authorized the Borough to change the maximum levels of discipline it can impose.”

The Borough also argued that it should not be required to rescind any discipline imposed exceeding the recommended maximum penalty in the old policy because the Association did not request such a remedy. Again, the Labor Board disagreed, finding that “it is irrelevant whether the Association requested such a remedy as it is within the Board’s discretion to determine the appropriate remedy in an unfair practice case. It was not error for the Hearing Examiner to order the Borough to restore the status quo and to make the bargaining unit members whole regardless of whether discipline had actually been imposed at the time of the hearing in this matter. As such, the Board finds the remedy in this case to be remedial and in furtherance of the purposes and policies of the collective bargaining law.”

Middletown Borough Police Officers Association, 2015 WL 1289710 (Pa. LRB 2015).