Discretionary Match - Different Rates for Union and non Union

Non Safe Harbor 401(k) plan covers union and non-union employees.  Match is discretionary.

Is the plan sponsor permitted to make a match for the non-union employees only, so long as they pass ACP testing?

Or would the correct approach be to sponsor two plans.  One for the union yes and one for the non-union

If you can get the language fitted onto the document, then you can do whatever you want.  It's easy to draft a plan to allow union employees to defer while making them ineligible for match.  It may get a little tricky when you try to draft  the plan to provide for the discretion to apply separately to each group.

Good Luck!

mandatory disaggregation between union and non-union employees so you essentially treat as separate plans for coverage and nondiscrimination regardless