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Insubordination - A Dozen Questions to Ask
One of the most troubling and difficult issues for the shop steward is the issue of insubordination. Many contracts say in clear language that an employee can be disciplined and discharged for insubordination.
For employers, insubordination is considered one of the deadly sins, right up there with theft and violence. They will be hard-nosed and unforgiving on the issue. That is why for almost every discipline case involving insubordination arbitrators hold to the rule "obey now, grieve later."
But in the heat of an argument or in situations where a member may be provoked beyond all common sense, the thought of filing a grievance over the issue may be furthermost from their mind.
Let's go over some of the basics here. First, insubordination is usually defined as the failure by an employee to perform a task or comply with an order given to him or her by a supervisor. An arbitrator will usually look at an employee's compliance with a reasonable order as basic to the conduct of the employer's business. Arbitrators take the issue of insubordination very seriously and consider it a major infraction beyond the rules of progressive discipline.
Simply put, refuse a reasonable order and you can be discharged.
Life, however, is never that simple. There are a number of issues which must be taken into consideration in any insubordination case.
1. Was the employee given a direct order? Mere instructions, suggestions, and/or advice are not the same as a direct order. A smart supervisor will say in no uncertain terms, "I am giving you a direct order to complete that job."
2. Was the member aware that he or she was given a direct order? A member may not have understood that the language used by the supervisor was a direct order.
3. Was the language clear? For example, a member might be told to stop smoking. As part of their job, they may go to another location in the facility and light up another cigarette. Caught smoking a second time, the supervisor might discipline them for disobeying an order. But how clear was the original order? The employee might have thought that he had to stop smoking at his original work location only.
4. Was the order audible? Many of our members work in very noisy locations.
5. Was the member given forewarning of the consequence of a refusal to follow the order? A smart supervisor will use words that clearly indicate a disciplinary consequence will follow the refusal to obey the order: "If you do not comply with my order, I will take you out of service."
6. Did the employee willfully disobey or disregard the order? Most cases demand that the refusal to follow an order be willful. A member may say that she was provoked by a supervisor, by abusive language for example. If a member comes to you with that kind of defense, you must dig down deep to find out why. In most cases, provocation is viewed by an arbitrator as a way of lessening the discipline, but not overturning it. An exception to this might be if the order was an affront to the basic dignity of the member. Racist or anti-union comments in the form of an order, for example, have no place in the shop and should be reported immediately to the union for action.
7. Was there an ongoing dispute between supervisor and member? If this can be documented over a period of time, the issue may be harassment. But to prove harassment, you need clear documentation from the member of instances where he or she was picked on.
8. Was the supervisor being unreasonable? The supervisor may have had a tough deadline to meet for production and a small incident set him or her off. The likely target becomes the member who just happens to appear in the cross hairs.
9. Was the order reasonable and necessary to the safe, orderly and efficient operation of the business? Did the order violate the contract, workrules, past practice, past arbitration decisions, or the law?
10. Did the member feel that complying with the order would endanger himself or herself and his/her coworkers? The right to refuse dangerous work is upheld by the Occupational Safety and Health Act. You must make your members aware whether they are covered by this language or state statute that is similar. If the work is unsafe, a member must report it and ask that it be made safe. Rather than an outright refusal, safer language might be, "I will comply with you request when the unsafe condition is corrected."
11. Was the member set up? This has happened often enough to make us suspicious of employer motives. If you are suspicious of the situation, make a thorough investigation. Check for witnesses and motive. Recreate the incident as accurately as possible.
12. Did the charge of insubordination arise out of the member executing his/her role as a union officer? If the member is a shop steward and got into a shouting match with the supervisor at a grievance meeting, the steward's conduct is protected. In cases of union duties, the steward or officer is an equal of management in labor-management issues and cannot be disciplined for exercising that role.
As a shop steward, you need to thoroughly investigate all charges of insubordination. In certain cases, you may be able to lessen the punishment, particularly if the employer is inconsistent in applying standards of behavior to your unit. But that means your local needs to keep excellent records. Also, a good work record may mitigate punishment in borderline insubordination cases.
The bottom line is that as a communicator, you must tell all members never to refuse a properly worded direct order. Check with a union officer before considering disobeying the order, even those health and safety orders. Lastly, a member can safely obey most orders and grieve later.
How Can They Make My Life Miserable?
There are many ways a supervisor can make your life miserable. Let's take a look at some of the ways management can try to wreck the grievance procedure and what you can do to counter them.
1. The stall: No it's not a piece of plumbing. This strategy is designed to make you wait. Your supervisor never replies to your request for a meeting or worse, never answers the first step grievance.
It is used for a variety of reasons, but the bottom line is that your request for some action is ignored. The tactic is frustrating and demanding. Your response should always be business-like. If the request for a meeting goes unheeded, make it again. If it is ignored a second time, put the request in writing with a copy to the union and the supervisor's boss.
If the issue is a response to a grievance, chances are the boss is trying to get you to miss your time limits. Never let that happen. If you do not get an answer within the time limits set out in the contract, appeal the grievance to step two with a note that the first step grievance was not answered in a timely fashion. Document your action and make sure the local union is aware of the problem. The second step appeal is made by a union officer so follow your local's procedure, and don't miss your deadline because of the stall.
2. The blow out: In this scenario, the boss wants you to lose your cool, usually at the grievance meeting. You could be ridiculed, ignored, yelled at -- anything to get you hot enough so that your emotions and not your intelligence rules. When you get angry, you forget your game plan and the meeting ends as a shouting match.
Sometimes the boss will aim the strategy at the grievant. Have you ever been at a meeting when the supervisor turns to your member and says something like this: "Did you really think you could get away with that?" Or "Aren't you old enough to know better?" Lines like this are designed to get the member angry enough to say something they should not. The member might disclose something on record which does not even belong in the meeting or they might lose their cool and become insubordinate.
At the grievance meeting, do the talking. Tell the member what to expect and not to get flustered or angry with any question which is asked. Educate the member before you go into the meeting. You can stop the meeting at any time to regroup and cool things down.
3. The trade. Formally called horse-trading, this tactic has nothing to do with ponies. It is an attempt by management to get something before they give something. You may be asked to give on one grievance to get a settlement on another. Never fall for this ploy. Decide all grievances on their merit. Horse-trading is an area in which the local union can incur liability.
4. Divide and conquer: A house divided on itself will not stand. And neither will a local union. Never allow any member to be played off against another. Never air disagreements in front of management. Have your discussion outside the room, out of earshot.
5. Side Issue. Here, the supervisor will bring up extraneous issues, other grievances, or the latest new company rule. If the meeting has been called to discuss a grievance, redirect the conversation back to the issue at hand, over and over again. Don't get sidetracked. Keep control of the meeting.
6. Shifting the burden of proof. This is often used in a disciplinary hearing or appeal. Management is charging the member with some kind of infraction. Under the general rules of discipline, they must prove their case. Let them speak and prove their case. This doesn't mean you stay stone silent during the meeting. You should play a very active role in defending the member, but it is the employer's job to carry the burden of proof.
These are six tactics that are used by management at the grievance meeting. They may be used to test the new steward; or to take control of the procedure back from the local union which has been successful in using it. Don't be fooled. Be forewarned and prepared.
