What other considerations must a unionized employer keep in mind regarding employee discipline?

In a unionized setting, or in an institution that is facing a union organizing drive, an employer must always be cognizant of the potential that a disciplinary action against an employee will result in the assertion that an unfair labor practice has been committed. When an employee who is a vocal and active union adherent engages in conduct that warrants discipline or termination, a difficult situation arises. An employer will be required to demonstrate that it would have taken the disciplinary action against the employee even if he or she were not involved in any union-related activity. It is unlawful to discipline an employee simply for participating in union activities.

Still more challenging is when a supervisor wants to take disciplinary action because of the protected activities in which an employee has been engaged. In the event that disciplinary action is requested due to actions that arise, either wholly or in part, from protected activity, human resources should do the following:

• Explain to the supervisor in private why the disciplinary recommendation cannot be implemented as requested.

• Assist the supervisor in identifying actions that warrant disciplinary steps to be taken that do not involve the exercise of any protected activity.

• If the supervisor was unaware of the ramifications of his or her request, view the situation as a learning opportunity for the supervisor. Describe why the action is protected and the penalties that the employer can incur for retaliation.

• If the supervisor knew (or should have known) that his or her disciplinary actions were unlawful and jeopardized the employer, discipline the supervisor according to company policy.

Importance of training. Because an employer can incur liability if its disciplinary procedures are improperly used in violation of the National Labor Relations Act, supervisor training is essential. Proper training will ensure that supervisors discipline employees on the basis of actual work-related infractions, and not in retaliation for an employee's union activity.

For more information. For information on protected activities, see ¶63,030 .