Labor Arbitration Institute: Insubordination: Refusal?

Submitted by President322 on Wed, 10/17/2018 - 10:32am

Each case file will help you understand what you should and shouldn't do and how we can help.

CASE File:
At the Seattle conference last week, audience members asked three questions following a lecture on insubordination. The speaker is a prominent labor arbitrator who was once a labor-side attorney.

Question: The order is: "sort through 4 pallets and then, you can leave." The next morning, the supervisor finds that only 2 of the 4 pallets were completed. Is that insubordination?

Answer: It's like half-insubordination. If overtime wasn't sought or sought & not granted, then the first question is: Was it a reasonable order? Would the employee have been able to comply with the order in the time available? If the four pallets were easy to sort through and they had just slow-rolled it, and then, the employee came back the next morning and ignored it, that is insubordination and subject to discipline.

I heard a similar case where the employee was told to empty part of the warehouse and put the product out into the yard. The employee refused because if it rained, the product would get wet and the electrical components would be rendered worthless. This argument between supervisor (who happened to be a fill-in, new supervisor) and employee went on for quite awhile. He refused about 4-5 times. He only complied after a meeting with HR and his union rep advised him to do so. By this time, another employee had already moved half the product out.

This case came down to: who knows better about the effects of their order? And the answer is: the supervisor. The grievant was insubordinate and he lost his job. Maybe the stupid manager will also lose his job, but the consequences for the order is on him.

I should say that the grievant was correct to point out the electrical component problem, but once the supervisor repeats the order, the employee needs to comply. Inventory be damned. This is the heart of the "obey now, grieve later” rule.

Question: We have an employee who does the work, but uses profanity and abusive language.

Answer: Did the work get done? If the problem is the behavior, then discipline for the behavior. You have two different things going on here. You can have unprofessional conduct in addition to insubordination in the same incident. Or you can just have one without the other. Management doesn't have to put up with unprofessional conduct.

Question: There have been repeated complaints about the air in this office. An employee comes to work, and says, “There's too much mold, too much bad air, I am not going to work. I am available for work, but I am not going to work,” given the unsafe working conditions. Is that insubordination?

Answer: I had this case when I was overseeing labor relations for a hospital. There was an off-campus building that had a lot of people working there. There was great morale. Then, half of the staff got moved to a new building. And the other half got left behind. They were not happy about this and they had sick-outs. They had sick-building syndrome. So, we brought in mold-folks and experts who couldn't find anything wrong with the air. I couldn't speak to the medical issues. Ultimately, it was a morale problem. They felt left behind. Rather than treat it as an insubordination issue, it was treated as a morale problem.

The employer is responsible for providing a safe workplace. If there's an air filtration problem, a heat or cooling problem, or a smoke/dust problem, then those are real issues and the employer is responsible for remediation.

Health & safety is one of the exceptions to the insubordination doctrine. And if that case comes forward, this exception will be recognized.

(Labor Arbitration Institute: For 25 years, the Labor Arbitration Institute has been providing labor, management and their attorneys relevant and thought-provoking education in labor law and labor arbitration. )