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(Source: Labor Arbitration Institute: Conference Reporter 08/01/19)

There are two reasons (areas of inquiry) why a ‘Failure to Follow Instruction’ is not insubordination.  A nationally-known labor arbitrator explained this at a recent conference.  

1.    Look at what is being asked of the employee in that workplace.

To the person on the street, an instruction sounds like an ordinary, every-day discussion.  An order sounds like a prescription — as in, “You must do this, or else.” 

You can also see the difference by evaluating what is at stake for both parties and how the workplace operates.  Here’s a real-life example:  It’s a typical office and workers are in a bull-pen or cubicle type setting.  The supervisor overhears the chatter, walks out, and says, “Stop talking about the Facebook post and just go back to work.”

What is the reality of the workplace?  The supervisor decided to ask HR if she could issue written warnings, when the employees continued to talk about the Facebook post after she told them to stop.

The analysis is straightforward.  The employer does not need a rule that employees should go back to work.  Work is what they are supposed to do all of the time.  Now the question is whether the employees can do their work, while talking.  If not, will the written warnings stick?  

Probably not, because the arbitrator is going to ask the HR rep:  Why didn’t you have the supervisor go back to the group of employees, and say, “I am dead serious. Stop talking about Facebook.  Go back to work.”  This would have raised the instruction to to the level of insubordination.  The three elements are met:  The second instruction is the order.  If they don’t follow the order, it’s refusal.  And for this offense, employees are presumed to know there would be consequences.

You can change the facts, and it’s only one employee who received the instruction because she was the only one who was talking and presumably interrupting others’ work.  Now, the first instruction looks more like an order.  And there may be other facts which tip the balance in favor of the employer.  The point here is to look at what normally happens between supervisors and employees and the employee’s own expectation about “instruction” versus a textbook definition of “insubordination.”

2.    Look at the penalty.

Employers are in a difficult position.   The employer has to set aside the supervisor’s emotion or frustration, and consider past discipline (of these and other employees), the just cause standard, and due process (which here is more a societal standard that a penalty should be proportional to the offense).

So, in the above case, the supervisor was correct that the employees were not listening to her.  But it is HR or Labor Relations’ duty to affix the penalty.  Any judgment they make about what happened is consumed by their choice of penalty.  In other words, the penalty is what stands out. 

This is another reason why having the supervisor levy the penalty without a review or recommendation by someone higher-up can make the Employer’s position more difficult to defend.

Finally, there’s another question that management could ask itself as part of the assessment:  what would a reasonable union leader (or employee) expect the penalty to be?

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