Inconsistent Discipline, a Popular Cook, and a Fairness Complaint

Four risks are in tension:

1. Operational. She is the fastest cook in a department with two vacancies. Losing her, even temporarily, means overtime and slower service.
2. Contractual/legal. In a unionized setting, a consistent, long-standing, and known practice can become an implied condition of employment. Moving abruptly to discipline for conduct tolerated for years invites a grievance that you will probably lose - not because the tardiness is acceptable, but because the change was imposed without notice. Discipline is also risky if there is an undisclosed FMLA or ADA-protected reason.
3. Fairness and morale. The new hire's complaint and the tardiness are the same problem viewed from two angles: a department without published, consistently applied rules. Tolerating one person's lateness while enforcing everything else is how a supervisor loses credibility.
4. Resident service. Late starts correlate with late trays, which is a quality and regulatory issue, not just a personnel one.

What past practice means practically: it does not make the tardiness protected, but it does mean you cannot retroactively issue a warning for the last 20 shifts. The defensible move is a prospective reset: a written, department-wide expectation with a stated effective date, notice to the union, and uniform application from that date forward. That gives you the right to discipline on the next occurrence without being accused of singling anyone out or changing conditions unilaterally.

Sequence

1. Pull 90 days of time-clock data for the whole department, not just her. You need to know whether 9 of 20 is an outlier or the department norm. You cannot defend selective enforcement without this baseline.
2. Read the CBA and handbook for notice requirements, progressive discipline steps, past-practice language, and union notification rights.
3. Meet with her privately, with a union representative if she requests one. State the observation, ask open questions, and ask directly whether there is a reason - caregiving, a medical condition, a schedule conflict. Document exactly what she says. Do not diagnose.
4. If she discloses a medical or family-care issue, stop and route to HR for FMLA/ADA review before any discipline. That is a separate process, not a negotiation.
5. Issue a written expectation memo to the entire department - start time, the three-in-90-days standard, and the consequences - with an effective date and a copy to the union. This resets the baseline prospectively and protects you.
6. Apply it uniformly. The next tardy from anyone, including her, triggers the first step. Keep a dated tardy log for every employee.
7. Offer support where it is operationally possible: an EAP referral, a shift adjustment, or a later start on a shift that can absorb it. Support and accountability are not opposites.
8. Document each step contemporaneously and keep it in one file.

What not to do

• Do not issue a retroactive written warning for the past 20 shifts.
• Do not single her out while others are equally late.
• Do not discuss the discipline with other staff or with the union steward informally.
• Do not retaliate for the steward's comment about past practice - that comment is protected activity in most settings.
• Do not let her productivity buy her a different rule; document the performance praise separately if you want to keep it.

Treat it as two questions, because it is.

Question 1: Is seniority-based scheduling legitimate? Probably yes. If the collective bargaining agreement gives shift preference by seniority, then a senior employee choosing weekdays is the contract working as written. Explain that to the new hire in writing, with the contract language cited. That is not favoritism; it is the agreement.

Question 2: Is the schedule actually being administered correctly? This is where complaints are usually founded, and where your exposure lies. Audit the last three months of schedules against the contract:

• Are shifts posted within the required timeline?
• Are weekend and holiday rotations distributed as the contract requires within seniority bands?
• Are there unposted changes, informal swaps, or exceptions granted to some staff and not others?
• Was the new hire assigned two consecutive weekends because of a rule, or because no one checked?

Then act

• Publish clear scheduling rules and posting timelines; post the schedule where everyone can see it.
• Rotate undesirable shifts within each seniority band where the contract allows, and document how the rotation was calculated.
• Respond to the complaint in writing, promptly, with the audit results - whether or not it is upheld.
• Address the driver: two vacancies and a 14% call-out rate make scheduling chaotic, and chaos reads as favoritism. Fill the vacancies, build a per-diem pool, and cross-train so a call-out does not force a last-minute reassignment.

Judgement note: you can defend seniority and still find that this employee was treated unfairly in the application of the rule. Handle both findings honestly in the same response rather than choosing one.