One of the safeguards that comes with having a Collective Bargaining Agreement (CBA) is that disputes and discipline must follow due process. One aspect of due process is the concept that disparate treatment is unfair. But what is "disparate treatment"?

Disparate treatment is unfair because it means subjecting people who are in a similar situation to two different standards. As stated in the "Conference Reporter" from the Labor Arbitration Institute, "How can it be fair to give one employee a different penalty when another employee, similarly situated, received a less severe penalty for the same rule violation?" If the rules apply, shouldn't they apply in the same way for everyone? Wouldn't that be the fair approach?

It would, but the problem is in determining what it means to be "similarly situated." For employees that usually means similar in longevity and work record. If you've been at a company for a similar amount of time and have been just as good of an employee, why should you get a harsher punishment if you did the same thing as someone else?

One reason is that employers are human. They can make mistakes, they can let unconscious bias sway them, cause them to see something as different when it really isn't. If the same case gets heard and in nine instances the treatment is the same but in the tenth one it is different, how should the eleventh case be decided? Is the tenth case the aberration or the new standard? It can easily be argued that the tenth case is the mistake and the eleventh should go the same way as the first nine. What made the tenth case different?

What if one of the people was an employee and the other was a supervisor? Should they be treated the same? Are they actually "similarly situated"? Like so many things in life, the answer is: it depends. Supervisors and employees can be be held to different standards both because the employee has a CBA and the supervisor won't, and the duties of a supervisor may make them not "similar." Then the question becomes, who should have been held to the higher standard and what does the employer benefit if they hold the supervisor to a lesser standard or apply a lesser punishment.

Disparate treatment is an issue of fairness and seems like it should be pretty straightforward. In the workplace with a union, we have a CBA is in place. This should make it much easier to resolve disputes fairly. It's not always the case in the real world.

Above, we were talking about "disparate treatment" and how applying different standards or punishments when the issues are otherwise similar is a violation of what's fair. Most of us feel that way when we read the story of a man killed at a Walmart for holding a pellet gun that the store sells, when another man who was both heavily armed and armored was arrested without incident (Walmart has since changed its open carry policy). Or, we had the hand wringing about a presidential candidate who caught pneumonia on the campaign trail compared to effusive articles about a different candidate after a heart attack.We know that things that are similar should be treated similarly in theory, but in practice that is seldom the case. For one thing, are they similar when the races or genders are different? Should those differences matter in how we look at an issue?

Both sides in a dispute can claim unfair treatment (especially if public opinion is going against them) and it takes a discerning eye to note what differences there may be in a story and to decide if that matters. Really, unless someone is dealing with their own clone there are going to be differences. A black man in a store that allows open carry holding a toy gun is treated differently than a white man in that same store holding an actual gun. A woman running for president is treated differently than an older man running for the same office. Why? Should they have been?

As we countdown to one year before the next federal election, we will see countless news stories about the candidates and we should be asking ourselves, as arbiters of these candidates, are they being treated fairly? When we hear something negative about one candidate or another, are we also reading that they are being held to the same standard?

The "likeability" or "electability" of a candidate is one of these things that sounds like it means something, but is often just a cover for treating similar candidates in different ways. Is Sanders more "electable" than Warren? They are both candidates for president, both senators elected by their respective states, so they can both win elections. What is the determination based on? Might it be policy, or history, or something else like gender? If it's about gender, does that mean they are still "similarly situated"? Ask the question and test the answer for fairness.

The US Supreme Court has ruled that the National Labor Relations Act gives workers the right to request union representation during investigatory interviews by supervisors, security personal, and other managerial staff. These are called Weingarten Rights.

An investigatory interview occurs if 1) management questions you to obtain information; and 2) you have reasonable apprehension that your answers could be used as a basis for discipline or other adverse action.

You must ask for union representation either before or during an investigatory interview. Management does not have to remind you of this right. If your request is refused and Management continues asking questions, you may refuse to answer. Your employer is guilty of an unfair labor practice and charges may be filed. If you are questioned in a situation where Weingarten may apply, read or present this statement:

"If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at this meeting. Until my representative arrives, I choose not to participate in this discussion."

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