The Importance of Prompt Disciplinary Action During Union Campaigns

Abstract

Matters of employee discipline are an unfortunate but necessary part of every employer's business affairs. Such concerns do not disappear in the face of organizing activity. To the contrary, legitimate disciplinary concerns can and do increase during union campaigns. Pro‐union supporters are often falsely told by organizers that they are immune from disciplinary action and, in turn, the employees engage in behaviors they would not otherwise entertain. Employers in such situations are frequently presented with a difficult disciplinary decision: either discipline a known pro‐union employee and withstand the likely unfair labor practice charge to follow, or tolerate the behavior as part of a more risk‐averse approach to disciplinary action. In either case, it is imperative for employers to act promptly as any delay can render an otherwise legitimate basis for discipline to be unpersuasive, as recently noted by the NLRB in Starbucks Corporation d/b/a Starbucks Coffee Company, 372 NLRB No. 50 (2023).