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Know union rules on probationary employees

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in Discrimination and Harassment,Firing,Human Resources

You won’t find many employers extolling the upsides of having a unionized workforce, but there is one advantage. If your union contract provides for a probationary period before an employee becomes a permanent part of your workforce, you may have more discretion in how you discipline the new em­­ployee.

That’s because once employees move to full employee status after probation ends, they gain all the protections negotiated in the union contract, including a grievance proc­ess. That process might require re­­in­stat­ing a union employee after a workplace violation. Not so for the probationary employee.

Recent case: When Thomas Fields, who is black, got into an argument with a white co-worker, both were fired under their employer’s zero tolerance policy against violence. But Fields was a probationary employee and not yet part of the union, while the white employee was. The co-worker filed a grievance, and was reinstated because he had a good ­disciplinary record.

Fields sued, arguing that he was treated differently than his white co-worker for the same offense. That is, he was fired with no chance for reinstatement while the white worker was allowed to grieve the discharge and had an opportunity to get his job back. This, Fields argued, was discrimination based on his race.

The court disagreed. It said that Fields could not compare himself to the co-worker because they were not operating under the same rules. Fields was probationary while the co-worker was a union member covered by the collective bargaining agreement, which allowed employees to appeal adverse job actions. Fields would have had to show that a white probationary employee was treated more favorably before he could win the case. (Fields v. SEPTA, No. 11-2960, 3rd Cir., 2011)

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