Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer lawfully declined to provide union with bargaining notes regarding attendance discipline, (Jun 3, 2026)

By Ronald Miller, J.D.

It was undisputed that, since January 2021, contrary to a CBA’s provision eliminating the issuance of occurrences/points for employees’ use of five annual paid sick days, Stericycle issued points when employees used those days.

An employer violated Sections 8(a)(5) and 8(d) of the Act by unilaterally modifying its collective-bargaining agreement by (a) assessing attendance points to unit employees for utilizing their five paid sick days; and (b) issuing discipline to unit employees based on accrued attendance point totals which included points assessed for utilizing paid sick days. However, the employer did not violate Section 8(a)(5) and (1) by refusing to provide information requested by a union relating to bargaining notes concerning discussions about the administration of attendance discipline during negotiations. Member Prouty filed a separate dissenting opinion (Stericycle, Inc., 374 N.L.R.B. No. 121 (June 1, 2026)).

Attendance provisions. Stericycle is a company specializing in collecting and disposing of regulated substances, including medical waste, and providing healthcare solutions such as consulting and training. Teamsters Local 628 represents employees at two facilities in two separate bargaining units. The parties’ 2016 CBA contained provisions relating to attendance, absences, and paid leave. Responding to concerns expressed by unit employees to the application of points, occurrences, and discipline to paid sick leave, the union sought to modify the attendance policy during the 2019 CBA negotiations. Specifically, the union sought to eliminate the issuance of point sheets when unit employees used a paid sick day.

For its part, Stericycle was amenable to eliminating the issuance of employee notifications under the attendance policy but sought to add call outs to the list of occurrences and points. The union did not agree to Stericycle’s proposal and requested a response to its proposal to modify the attendance policy. However, the parties reached a tentative agreement to a exclude the “five (5) days of sick leave” from the attendance policy but keep the same points system, and increase the number of “occurrences” to nine.

At a March 12, 2020 bargaining session, Stericycle presented its final offer on economics. It also produced a different attendance proposal. Attendance points were omitted, leaving only a provision to track occurrence. Stericycle’s proposal did state, however, that it would not assess occurrences until after the employee used five paid sick days, incorporated the Disciplinary Action section to delete all reference to points.

After March 12, bargaining sessions were replaced by email exchanges due to the COVID-19 pandemic and the subsequent restrictions on in-person gatherings. In-person bargaining resumed on October 14, 2020.

Disagreement over interpretation. During the latter part of November, a disagreement arose among the parties regarding their interpretation of the new attendance policy. A Stericycle official insisted that the employer had not agreed to eliminate the issuance of points under the attendance policy for employees’ use of paid sick days. The official insisted that his bargaining notes would prove otherwise.

Implementation of 2019 CBA. On January 1, 2021, Stericycle removed all points and occurrences assessed unit employees at one of its facilities under its attendance policy for absences which occurred prior to that date. Since that date, Stericycle has consistently applied the attendance policy by issuing occurrences and points to unit employees for using their five paid sick days. Moreover, the progressive disciplinary process has been consistently applied beginning at six points/occurrences for absences. Throughout the same period, Stericycle has issued occurrences/points for employees’ use of paid sick days in calculating employees’ total accumulated attendance points for purposes of determining whether to issue such discipline.

After learning in late January 2021 that unit employees were being issued points/occurrences for using paid sick days, followed by progressive discipline beginning with their sixth absence, the union began filing grievances.

Information requests. On April 8, 2021, the union submitted an information request to Stericycle for 13 sets of documents relating to the attendance policy grievances. All the items were eventually resolved except two, specifically documents showing bargaining notes concerning the parties’ negotiations concerning the administration of attendance discipline.

Complaint allegations. The complaint alleged that Stericycle failed to continue in effect all the terms and conditions of parties’ CBA by modifying the attendance policy to: (1) assess attendance points to bargaining unit employees for utilizing their five paid sick days; and (2) issue discipline to unit employees based on accrued attendance point totals which included points assessed for utilizing paid sick days. These actions allegedly constituted a failure to bargain in good faith within the meaning of Section 8(d) and in violation of Section 8(a)(5) and (1).

It was undisputed that, since January 2021, contrary to the 2019 CBA’s provision eliminating the issuance of occurrences/points for employees’ use of five annual paid sick days, Stericycle has issued points when employees use those days.

Stericycle insisted that it would be unreasonable to construe language exempting five sick days from being assessed points as an agreement to increase the number of occurrences/points from 9 to 14. Further, it contended that the attendance policy is ambiguous, thus requiring a look to extrinsic evidence to determine the parties’ intent.

However, an administrative law judge observed that there was no indication, either within the language of the 2019 CBA or the parties’ bargaining notes, that the exclusions section was intended to preempt any other provisions, including the extensively negotiated occurrences/points section. Nor was there anything ambiguous about the parties’ agreement that “[o]ccurrences/points will not be issued for employees[’] use of their five (5) annual paid sick days” or to remove “points [given to Unit employees] for paid sick days retroactive to 11/1/2019.” The fact that the new attendance policy represented a significant increase in points was of no consequence, as the evidence revealed that there were significant concessions on various issues by both sides.

Under the circumstances, Stericycle’s decision to issue points and occurrences to employees for the use of paid sick days, as well as the discipline that resulted therefrom, constituted a unilateral modification of the contract’s terms. Additionally, Stericycle violated Section 8(a)(5) and (1) by unilaterally altering terms and conditions of employment involving mandatory subjects of bargaining without providing the union with notice and the opportunity to bargain.

Bargaining notes. Among its requests for information, the union sought bargaining notes concerning or relating to discussions about the administration of attendance discipline during negotiations. The documents were presumptively relevant. However, Stericycle refused to produce that information on the grounds that the union was not entitled to it. The employer was correct, according to the Board.

In Stericycle, Inc., 370 N.L.R.B. No. 89 (Feb. 17, 2021), the Board reversed an ALJ’s finding that Stericycle was required to produce bargaining notes, citing Berbiglia, Inc., 233 NLRB 1476, 1495 (1977). Accordingly, since Stericycle had a legitimate reason for refusing to comply with the information request, that allegation was dismissed.

Upon further consideration of this matter, the Board declined the General Counsel’s and the union’s requests to reconsider Stericycle, Inc., 370 N.L.R.B. No. 89, and it affirmed the ALJ’s dismissal of this allegation for the reasons given by him.

Dissent. In a dissenting opinion, Member Prouty observed that in this instance, the union’s bargaining notes request would squarely cover notes recounting “discussions” between the parties that occurred at the bargaining table. According to the dissent, those contemporaneous notes describing those exchanges are obviously nonconfidential and often highly relevant to the resolution of both contractual grievances and Board litigation. Thus, in Prouty’s view, the blanket rule of Stericycle I not only conflicts with real-world bargaining experience but also deprives the parties—and the Board—of an important tool in uncovering the truth.

The slip opinion is 374 NLRB No. 121.

Attorneys: Nicholas S. Allen for General Counsel. Ashton Hupman (Littler Mendelson) for Stericycle, Inc. Claiborne S. Newlin (Markowitz and Richman) for Teamsters Union Local No. 628.

Companies: Stericycle, Inc.; Teamsters Union Local No. 628

Cases: Labor UnfairLaborPractices Bargaining Covid19 EvidenceDiscovery AgencyNews