HARRISBURG – The Pennsylvania Commonwealth Court in November sent a message to public employers in the commonwealth when it ruled that the Chester Upland School District was guilty of unfair labor practices because it adopted a punctuality and attendance policy for employees without first engaging in collective bargaining.

“Under Pennsylvania’s Public Employee Relations Act, public sector employers must bargain with employee unions before taking action that changes the terms and conditions of employment,” Micah Saul, of McNees Wallace & Nurick, told the Pennsylvania Record.

Saul said Chester Upland’s updated policy changed the terms and conditions of employment by imposing discipline on employees for using sick days – something the district had not done before.

“In this case, the district’s desire to attach new disciplinary consequences to its attendance policy wasn’t the misstep; attempting to do so unilaterally and not negotiating with the union was the problem,” Saul said.

The updated policy adopted by the Chester Upland School District called for employees who accrued a specified number of sick days to be subject to disciplinary measures. The policy was adopted by the district after the collective bargaining agreement ran out.

In the subsequent unfair labor practices complaint, the employees’ union cited the terms of the expired collective bargaining agreement, which allowed employees to take 11 sick days per year, but did not include any disciplinary measures for district employees who exceeded that yearly allotment.

However, the school district argued that employees were always subject to discipline when they took too many sick days. The district said the only difference was that the updated policy spelled out what disciplinary actions could be taken.

The Commonwealth Court disagreed with the district’s argument, finding that the new policy was in direct conflict with the previous contract because it added a disciplinary component.

In its ruling upholding the state Labor Relations Board's decision that Chester Upland was in violation of labor practices because it unilaterally adopted the updated policy, the Commonwealth Court said the PLRB had historically required sick leave policies to be negotiated through collective bargaining.

In addition, the court said the policy adopted by the school district went beyond just clarifying the disciplinary methods. Instead, the court ruled that the policy specifically allowed Chester Upland to discipline its employees for using too many sick days, constituting an unfair labor practice.

The Commonwealth Court also said in its ruling that a public employer cannot unilaterally impose disciplinary measures, regardless of whether or not a collective bargaining agreement was in place or is being negotiated.

According to Saul, the decision does not directly apply to private sector employers. However, he said companies in the private sector with unionized workforces are generally required by other state and federal labor laws to bargain over subjects such as the implementation of new disciplinary rules.

“Some private sector employers use ‘no-fault’ attendance policies under which employees may be subject to discipline for accruing a certain number of absences, regardless of the reason for those absences, including taking sick days,” Saul said.

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