From Labor Notes: Organizing against 'Right-to-Work' will not only boost membership, but also get more members engaged and help us win on issues.Read more
One of the most powerful arguments a union can make against unfair discipline is disparate treatment. Learn how to win a disparate treatment case and fight an unfair suspension or discharge.
Disparate treatment arises when one employee is given a significantly more serious penalty than others who committed the same infraction.
Disparate treatment violates Just Cause because it indicates the presence of favoritism or discrimination. Labor arbitrators frequently reduce a grievant’s penalty to the lowest level given for the offense.
Here are some points you may find useful in preparing your next disparate treatment case:
- The disparate treatment defense works best for a grievant who was suspended or discharged. It does not work well in the case of oral or written warnings.
- Disparate treatment may be raised even if only one other employee (called a “comparator”) was given a significantly lesser penalty – either recently or in the past.
- The best comparator is an employee within the bargaining unit. The union can also compare employees in other units or even in management. When a rule – for example a ban on intoxication – is applicable within and without the bargaining unit, an employer is expected to apply substantially similar penalties.
- Identifying a comparator is not the end of the story. The union must be able to overcome contentions by the employer that a “valid distinction” justified the difference in treatment. Valid basis includes substantially more years of service or a clearly superior disciplinary record. A lesser penalty may also be justified if the worker showed remorse and took responsibility for his or her actions.
- If a comparator’s discipline was modified during the grievance process, the union will need to review the settlement papers. If they say the case was resolved “without prejudice or precedence,” the union may not be able to cite the matter when defending others.
- The union should demand the personnel files and disciplinary records of possible comparators and, if possible, conduct interviews. The employer should be asked to specify in writing any and all reasons why the comparator was given a lesser penalty than the grievant.
For more on this topic, read Just Cause: A Union Guide to Winning Disciplinary Cases by labor lawyer Robert M. Schwartz. Available for $20 on the Work Rights Press website.
April 8, 2014: An interview with Brooke Reeves a Local 251 Steward at Rhode Island Hospital.
You backed the incumbent officials who lost the Local 251 election. What’s it been like since then?
The biggest change is the new leadership is totally up front with the members. The old Business Agent made deals that were kept totally secret from us.
We just found a Memorandum of Understanding that cut starting pay for new hires. I wanted to throw up. The old BA signed that in the middle of the contract and didn’t even tell us.
With the new officers, everything is out in the open.
What’s the biggest difference that stands out about the new local leadership?
They’re not here to make deals with H.R. or try to make H.R. happy; they’re here to help the members.
They don’t play favorites. They knew I didn’t support them in the election, but they reached out to work with me. They said the election’s over, it’s time to come together.
The old BAs played favorites. If they didn’t like you, they didn’t return your call.
It may sound corny, but these guys are sincere about representing every member.
We’ve got a lot more grievances now, but that’s because members are getting results, instead of getting ignored, so more people are coming forward to ask for help.
How has this experienced changed your view of TDU?
Before, I didn’t really know what TDU was. I only heard what the officials told me: that TDU sucks and they’re out to destroy the union.
I didn’t have anything negative to say about TDU really. Well… I think I posted TDU Sucks once on my Facebook page (laughs).
I went to a TDU Education Conference and that’s where I saw for myself what TDU is really about. The training there blew me away. I’ve been a steward for years and the old local officials never gave us any training the whole time. We were on our own.
I like that TDU wants members to know what can be done and how to do it the right way. TDU gives you the tools to defend members and enforce the contract. That’s what union is all about. I joined TDU myself right then and there.
The Rhode Island Hospital contract covering over 2,500 members expires later this year….
Yeah, and I think it’s going to be the toughest contract fight we’ve ever had. Contract negotiations have always been behind closed doors. It’s always been, “Here’s the new contract. Now vote on it.”
This time, we’re really going to talk with all the members and bring people together.
The Hospital wants to take a lot away. It’s up to us to stick together and protect what we have.
April 12, 2012: Get grievance advice and essential resources from TDU today.
Grievances: Using the Grievance Procedure to Defend Our Rights and Build Power on the Job. Available in English and Spanish, a handbook on the mechanics of the grievance procedure and organizing tips for involving members. $8.
How to Win Past Practice Grievances by attorney Robert Schwartz. This book unlocks the mystery of using past practices in the grievance system and at the Labor Board. $13.
Get your copy today! Click here to visit the TDU store.
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"From basic advice to advanced grievance handling, TDU will get you the expert advice you need to enforce your contract and win your grievances."
Karl Gartung, Steward, Local 344 UPS Cartage Services, Milwaukee