Proving Disparate Treatment
Claiming “disparate treatment”—imposing harsher punishment on one employee than was imposed on others who committed the same offense—is one of the most effective union defenses against discipline, especially discharges.
When disparate treatment is proven in arbitration, discipline must either be vacated or reduced. Although company training manuals invariably warn management against disparate treatment, the practice is hard to root out. Some bosses enjoy dispensing favors to brown-nosers, personal friends, or workers who inform on the union. Others are too lazy to make sure discipline is consistent.
Some examples of disparate treatment:
• Suspending worker A for speeding while giving no punishment to worker B.
• Firing worker A for absenteeism while allowing other substance-abusing employees to enter treatment programs.
• Firing worker A for fighting while allowing worker B to enter into a last-chance agreement.
• Firing worker A after a single warning, while giving worker B two warnings before firing.
In a case flawed by disparate treatment, the proper remedy is to reduce the penalty to the level imposed on the lesser-punished worker or workers.
UNDERSTANDING THE RULE
It may seem easy to establish disparate treatment: simply request a raft of disciplinary records and search for employees who violated the same rule or standard as the grievant but were given lesser punishment. Yet unions who pursue such cases often find their claims rejected because the union is unable to counter the employer’s contention that the differences were justified.
Contrary to common assumption, the disparate treatment rule does not require an employer to treat all employees alike. Harsher discipline can be imposed if there is a legitimate reason.
For example, the grievant may have a substantially worse disciplinary record, may have committed a far more serious infraction, or may have substantially less seniority. Employees may get lenient treatment if they admit their mistakes or take responsibility for their actions.
To prove disparate treatment, the union must fully research the comparison employees, studying their personnel files, reviewing their investigatory interviews, and, most importantly, talking with them about what happened. (In many cases, these employees must be called to the stand).
Even the records of fired workers should be reviewed: the union may discover that a fired worker was given two warnings before the final action, while the grievant received only one.
Workers often receive less punishment than others as the result of a grievance settlement. For example, the employer may agree to reduce a discharge to a suspension or a suspension to a written warning. If the union cites these cases at arbitration, will they be accepted for comparison purposes?
It depends on the language. If the settlement says that it is “without precedent for future cases,” or uses words to this effect, it will have no value before an arbitrator (although it may be raised in the lower steps of the grievance process.) But if the settlement is silent on precedent, the arbitrator can classify it as disparate treatment.
Q & A
How far back can we go?
Q. Can the union go back 10 years to prove disparate treatment? A. Yes. In one published case an arbitrator ordered reinstatement because the employer issued a lesser penalty 14 years earlier.
No diverging penalties
Q. A short-term employee was terminated for an offense that a long-term employee was given a warning for. Is this legitimate? A. No. Although a difference in seniority can justify a discharge over a suspension, it does not justify such a wide divergence of penalties.
Q. Can an employer justify harsher discipline for insubordination on the ground that a lesser-punished employee works in a different department? A. No.
How many examples are needed?
Q. Do we need several cases to prove disparate treatment? A. Although the more the better, most arbitrators will find disparate treatment from a single example.
Q. Does the disparate treatment rule apply to infractions by supervisors? A. Yes, if the supervisor (or other non-bargaining unit employee) violated the same rule as the grievant and was not punished and if the rule applies both within and outside of the bargaining unit (such as a no-smoking or no-fighting rule).
Q. Can an employer take harsher action for a violation because the employee is a steward? A. No. Union representatives cannot be held to higher standards of conduct than rank-and-file employees except in areas, such as wildcat strikes, where the contract imposes special obligations on union officials.
Q. If an employer suspends a worker for sleeping on the job, is it permanently barred from discharging others for such violations? A. No. Prior treatment disappears as a defense if the employer notifies the bargaining unit that in the future all employees who commit the offense will be discharged, with no consideration of mitigating circumstances.
[Robert Schwartz, a union labor lawyer and author of several labor law handbooks published by Work Rights Press, is working on a new book on defenses to discipline.]