Wise employers know that management should keep individual employee discipline on a need to know basis. In other words, an employee’s written warning or counseling should not be shared by management with the employee’s co-workers or even with managers who are not in the employee’s chain of command. Some employers may also take the position that the employee should not discuss his/her discipline with co-workers because it may be disruptive if the employee does so, and therefore disciplinary matters should be considered confidential. This position, however, could be problematic under the National Labor Relations Act, as one employer learned to its dismay in Philips Electronics North America Corp.
In this case, an employee received a final warning for disruptive behavior during meetings and harassment of colleagues and management. After receiving the warning, the employee continued to harass a co-worker who complained about him by driving a forklift into the co-worker’s area and, while seated 10 feet away, making comments to her (Seriously? Even my crazy teenagers are more mature than that!). He also showed the warning to some of the other co-workers, while blaming the co-worker. The company investigated these additional actions, and prepared a summary report of its findings. This included a statement that the employees “are aware that disciplinary forms are confidential information and should not be shared on the warehouse floor, at any time…” The employee was then fired. His termination notice stated that he was being terminated, in part for sharing confidential information. It further stated that he had been told that his discipline was confidential at the time it was issued to him.
The National Labor Relations Board found that the employer had maintained an unwritten rule that discipline is confidential and prohibiting employees from discussing their discipline with co-workers. It further found that this rule was a violation of Section 8(a) of the NLRA, which protects the rights of employees (both union and non-union) to discuss their terms and conditions of employment. Specifically, the Board emphasized the importance of employees being able to discuss their discipline with each other, so that other employees would be aware of the nature of the discipline, how to avoid it, and how to defend themselves.
So employers, keep in mind that employees can disclose their own discipline if they want.