By L. Spriggs

Employers are notoriously famous for mismanaging workplaces, especially when it comes to discipline. This mismanagement generally works in favor of union members since employees can't be punished for breaking a rule or violating a standard if the employer hasn't been enforcing that rule or standard for a prolonged period. 

When employers fail to enforce a rule or policy for any considerable length of time, the assumption is that the employer no longer expects its employees to follow that rule or policy. After all, isn't that the message they're sending by not disciplining employees? Arbitrators tend to agree, and they refer to such inaction as "lax enforcement."

In order to prove lax enforcement when defending members, however, unions must provide proof that a rule or policy was violated, and that management either knew—or should have known—about the violation but failed to enforce the rule or policy. For example, the union could provide testimony from an employee who previously broke the same rule or policy in front of management but was never punished.

Proving lax enforcement, however, runs the risk of what's called a "reset" by the employer, in which case an employer notifies employees of the existing rule or policy, explains how they failed to enforce the rule or policy in the past, and describes their plan to strictly enforce the rule or policy in the future. Once an employer has taken these steps, they're free to punish future violations as long as punishment remain consistent.

But we know that management is rarely ever consistent... ;) 

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By L. Spriggs

Your employer can't discipline you for violating a rule or standard if they don't have substantial and credible evidence to justify the discipline. 
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In his book titled Just Cause: A Union Guide to Winning Discipline Cases, Robert M. Schwartz recounts an interesting case where "an employee...called in sick with an intestinal disorder. Learning that she traveled to an out-of-state casino, the company fired her for dishonesty." In this case, the employee actually admitted to taking the trip but claimed to have been sick the entire time. Since the company didn't have any evidence that she could have worked, the arbitrator ruled in her favor and ordered that she be reinstated. Apparently, union members can go to the casino or a Cardinal's game when they call in sick as long as they actually look sick in all of the photos they post on social media...
But seriously, don't do that.

Generally, arbitrators rely on predetermined standards of evidence when evaluating grievances under the substantial evidence standard. These standards are not as robust as legal standards of evidence, but they still help to protect union members from being suspended or dismissed for unjust reasons. Furthermore, evidence that employers present, whether direct evidence, circumstantial evidence, or hearsay, can often be successfully disputed by a union depending on the circumstances of the situation. ​

Imagine, just imagine, a student accuses a teacher of grabbing them in the hallway and the parents call threatening to get lawyers involved, so the administration decides to investigate and they determine the evidence to be significant enough to discipline the teacher. However, the teacher claims she was reaching for a pass that she had asked the student to show her. Now, let's also imagine, just imagine, that upon closer examination of the evidence, the camera footage capturing the incident is unclear and could be interpreted as footage of the teacher simply reaching toward the student instead of grabbing them. On top of that, the eyewitness accounts from another union member, as well as two other students, contradict the student's own claims. 
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In such a case, if the administration still moved forward with suspension or dismissal and the case eventually went to arbitration, the evidence presented by the administration would not meet the standard of substantial evidence. 

By L. Spriggs

Not really. A grievance can only be filed against your employer. If you're having issues with a co-worker, perhaps dealing with workplace bullying or harassment, for instance, you would need to file a complaint with an administrator first. If the administration fails to address the issue, then you or the union might have cause to file a grievance against the administration if their failure to act can be construed as a violation of the contract or your workplace rights. 
Another alternative would be to complain to HR. However, remember that HR works for the interests of the district and the school board, and those interests might not always align with yours, so you might not get the outcome you desire.

You might also consider looking into the union's constitution. Most Constitutions and by-laws provide means to remove a member from the ranks if they're conducting themselves in ways that are unbecoming to union membership. 

Finally, unlike workplace bullying or harassment, sometimes an issue might not be serious enough to involve the administration at all. Don't forget that, especially for less serious issues, you always have the option of asking your department chair or another fellow union member to assist in mediating an issue first. 

By L. Spriggs

Just Cause Standards: How Unions Defend Their Members Against Unfair Discipline

Let’s say you’ve been through the process of being called to the principal’s office for some infraction, you’ve had a meeting with the administration, and the administration has decided to move forward with discipline, but the member, or union leadership, believes the discipline is unfair or unjust. What happens next?

At that point, the member or the union may decide to move forward with a grievance, or formal complaint, against the district.

The specific grievance process is outlined in our bargaining agreement. In brief, if the union and the administration cannot satisfactorily resolve a discipline issue informally, the union can submit the complaint to binding arbitration, which means a neutral, independent arbitrator will review the issue and decide whether the discipline was justified or not.

There are seven standards that arbitrators generally refer to when determining whether a particular disciplinary action was justified, and these are called the just-cause standards. They include prior notice, substantial evidence, progressive discipline, recent enforcement, consideration of mitigating or extenuating circumstances, equal treatment, and due process.

Whenever your union is tasked with defending you against unfair discipline, your representative should be familiar with how these just-cause standards might apply in your particular situation, and be able to help prepare your case for arbitration.

By L. Spriggs / Question submitted anonymously

Member Question: "I've had to explain to a number of people that the union doesn't work to discipline 'bad' teachers. Maybe you could provide an explainer of why that is and what the options are?"

For one thing, unions are legally forbidden from violating the rights of their members, so taking on the role of punishment risks complicated and expensive court cases when they get it wrong, which often means dolling out punishments is not really worth the risk unless it’s to expel a member for something particularly egregious, such as embezzlement, assault, or abuse of power.

The only other real recourse unions have besides expulsion is fining, and fines have been challenged in the courts time and again, with unions often losing those cases. Again, pursuing fines is not really worth the risk of drawn-out court cases in most situations. Either way, fines are typically reserved for crossing picket lines or other union-related issues.

Regardless, unions exist to empower workers, protect their rights, and improve working conditions, not to add additional layers of management. 

Furthermore, punishing employees is management’s responsibility, and when a union performs that role it lets management off the hook for actually managing the workplace. Instead of asking why unions don’t punish members, it might be better to ask why management isn’t using the many tools at its disposal to motivate, discipline, or fire employees who aren’t passing muster.
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Finally, employers like to argue that they're afraid of dolling out punishments because the union is too powerful, but a well-managed workplace that follows legal precedent and doesn't violate the rights of its employees in the process really has nothing to fear from unions. The real problem is that many workplaces are simply poorly managed...

By L. Spriggs

In a nutshell, your employer can't discipline you for violating a rule or standard if they haven't made clear what the rule or standard is by notifying you prior to the offensive behavior. 

It's an employer's duty to establish rules and procedures of conduct in the workplace; otherwise, how is an employee to know what is allowed and what is forbidden? For that reason, it's also their duty to notify you of those rules and procedures as well as any potential penalties that may result. 

Some behaviors, however, are self-evidently wrong, and employers aren't required to publish rules about those behaviors (e.g., lying, stealing, fighting, sleeping on the job, etc.), so keep in mind you can still be disciplined for such offenses even without the rule having been previously posted anywhere. 
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Employers can publicize rules in a variety of ways, such as memos, bulletin boards, emails, faculty meetings, announcements, contracts, etc., and the assumption is that employees read and understand rules that are posted or disseminated in the workplace. In other words, if you don't read your emails and you end up missing a posted rule as a result, the union can't claim ignorance on your behalf in order to get you out of a punishment, so if you're reading this and you're one of those people who either proudly or sheepishly claims to not read their emails, start reading your damn emails if you expect your union to have your back.

By L. Spriggs

When disciplining employees, an employer must issue discipline that allows the employee to correct or improve their behavior. 

As teachers, we know that classroom discipline should seek to correct misbehavior, not punish or humiliate, and workplace discipline should work the same way. This is why arbitrators generally agree that employers should apply the lowest penalty that is likely to prevent further offenses. 

There are exceptions to this standard, of course, that fall under the category of an egregious offense, which is basically something so heinous that the administration could fire you on the spot. People always like specific examples of what constitutes an egregious offense, so here are a few things not to do. Don't batter another teacher, student, or administrator with an open-handed slap even if they made an inappropriate joke about your significant other. When collecting money for a fundraiser, don't take your "cut off the top" before depositing the cash. Don't sell a student one of your special gummy bears even though they told you they have a medical marijuana card and just forgot to take their daily dose before they left for school. Don't falsify your transcripts using photoshop and a custom embosser you ordered online from a Chinese website in order to "fast-track" your horizontal movement on the pay scale because you believe ''they just hand out diplomas like participation trophies these days anyway" and "if they'll give [name redacted] a doctorate" then you definitely deserve one but don't think you should have to pay tens of thousands of dollars to prove it. 

Egregious offenses aside, progressive discipline usually requires a verbal or written warning first, followed by a suspension or two, and then dismissal. After a verbal or written warning, if an employee becomes a repeat offender, the employer can then issue a more substantial punishment as long as the prior discipline was documented and actually resulted in discipline, since "[i]t's unfair to base punishment on an event that the employee was not able to challenge in the grievance process," according to veteran labor lawyer Robert M. Schwartz. Any current punishment should also be somewhat related to any previous discipline, and discipline must be clearly explained to the employee either in written form or during the grievance process.  
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Finally, some cases may fall into the "last-straw" category, which is a situation where an employee "commits a continuous series of minor transgressions" and the employer considers the employee to be "hopelessly incorrigible" (We all know the type.) In such a case, an "arbitrator may uphold a last-straw discharge if the pattern of unsatisfactory conduct is lengthy, reprimands have been issued, counseling has been attempted, a final warning was provided, and the employee committed an additional improper act (Schwartz)."

By L. Spriggs

Being non-tenured basically means you're on probationary status for the first four years before your full due-process union protections kick in. For your first three years, you can be dismissed for any non-discriminatory reason, and the district need not give you that reason. In your fourth year, however, they must provide their specific reasoning, which makes it easier to challenge a dismissal. For this reason, school districts are actually encouraged to dismiss poorly performing teachers in the first three years instead of waiting, which means if you've made it to the fourth year without any previous evaluative or disciplinary issues then there's a good chance you'll earn tenure.

Furthermore, the school board is required to notify you whether you're being rehired or dismissed the following year at least forty-five days prior to the end of the current school year. 
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Something else that's good to know is that thanks to new rules for tenure under the PERA law, you're tenured after only 3 years if you receive 3 consecutive annual evaluations of "Excellent." 
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Finally, if you ever have any issues or questions within those first four years, never hesitate to contact someone in the union for guidance or advice. You're still a member, after all.