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Ella Bloor was having a bad day on her machines. They weren't running right and to make matters worse, the company had bought bad steel again. Her foreman came up to her and said, "Ella, we need those machines up and running and since Rachael is out today I want you to start up her machines and get them running also." "No way" said Ella, "I've got my hands full with my machines and the contract says I don't have to run extra machines except in emergencies." "I'm telling you to get over there and start up those machines" yelled her foreman. "If you don't, you'll be fired for insubordination."
Sally Hemmings, the department Steward went into the supervisors' office. "We have to talk about your foreman Ralph. He's out there threatening Ella and trying to make her run more machines than she's supposed to." Benito Mussolini, the area supervisor looked up at her, "I'm the one who told him to get Ella off her butt and get those machines running. I don't have time to talk about this now, see me tomorrow." "No way" said Sally, "We're going to talk about this now." "Oh yeah?" snarled Benito, "Get out of my office or I'll have you fired for insubordination also."
Management loves power. The ability to threaten workers with punishment for being insubordinate is a tool that many managers use to enforce their power.
For many union people the whole idea of workers being punished for being "insubordinate" to bosses is insulting and discriminatory. In reality, this whole area of labor law is one where the openly class nature of labor law becomes clear. Management is considered better than workers and workers are considered inferior to management. Management is considered the "master" and workers are considered to be "servants." It is insulting and openly biased against the working class, but we have to deal with it. More on this later.
What is Insubordination?
Here is how one management document describes insubordination:
Insubordination is a deliberate and inexcusable refusal to obey a reasonable order which relates to an employee's job function.
Employees may not decide for themselves which instructions they will follow and which they will not.
This is pretty much how most arbitrators or the NLRB would describe insubordination. BUT, as we all know, there are different levels of insubordination and the behavior of management often has an impact on whether the actions of an employee are considered insubordinate or not.
Guideline to Use When Investigating an Employer Charge of Insubordination
There are two basic tests for insubordination. (1) Was the worker given a clear direct order to do something? (2) Did the worker clearly know the consequences of refusing the direct order? This usually means the management person giving the direct order must tell the worker what will happen if they refuse the order.
Employees do have the right to question and argue about an order given by their boss.
It is not insubordination if a management person tells a worker to do something and the worker responds by asking questions or giving their reasons why they shouldn't have to do what the boss wants.
It is not insubordination if the worker asks to have a Steward present to explain to management how the order given violates the union contract.
It may become insubordination if the worker consistently refuses to do what the boss wants after being directly ordered to go perform the task.
It may be insubordination if the worker does not argue with management but never does what he/she has been ordered to do.
Generally an act can become insubordination after the management person tells the worker that they are being given a direct order and tells the worker that they will be punished if they fail to carry out the direct order. This does not mean that the boss can immediately give a worker a direct order with the threat of punishment and not have to listen to the worker's objections.
It is not insubordination if following the direct order will immediately put the worker or other worker's lives in danger. The threat however has to be real and immediate.
It is not usually insubordination if the management person giving the order is not the worker's normal boss or part of the "chain of command" that the worker would normally have to follow. Rather than just refusing the order of the management person, the worker should insist upon finding his/her regular supervisor and having them make the decision as to what the worker should be doing.
What should a worker do if following the order management gives will cause damage to a machine, produce a poor product or result in inferior services provided? The worker should clearly point out to management what the bad results of their order will be and ask for a witness to hear the warning the worker is giving management. If the worker does this then they generally cannot be disciplined for the resulting damage or inferior product/services.
If a worker is charged with insubordination, the Steward should perform an investigation of the situation surrounding the events. Many workers who have been charged with insubordination have been cleared when the investigation shows that management people harassed them and then they respond to the harassment by using a poor choice of words.
"Shop talk," that is, the use of salty language, is not automatically grounds for insubordination. Here again there are many factors involved. How much shop talk goes on, on a regular basis? Do management people use shop talk? Do management people and workers use shop talk to each other? Just because there may be shop talk as part of the regular day-to-day life of the workplace, a worker may be charged with insubordination if he/she uses an excessive amount towards a supervisor after having been asked to do something.
In another example of class bias in dealing with insubordination, arbitrators look at whether or not the supposed insubordination takes place in front of other workers. Because they believe that the management person is the "master," they tend to rule more harshly against workers if the "master" is ridiculed or disobeyed in front of other "servants." In some cases arbitrators have ruled against workers when they bragged about what they called the boss in private.
Stewards and Insubordination
Stewards have a special status under rulings by the National Labor Relations Board, in relation to insubordination. The NLRB has ruled that "when stewards are engaged in representational activities they are considered equals with management." This means that when Stewards are dealing with management, as a Steward (not as an individual) they can engage in robust disagreement with a boss, they can use to some extent profanity, and generally they do not have to show deference to the boss. Stewards have a right to vigorously pursue an argument with management.
Here is what the NLRB said in one decision. Please carefully note the language the NLRB used:
The relationship at a grievance meeting is not a "master-servant" relationship but a relationship between company advocates on one side and union advocates on the other side, engaged as equal opposing parties in litigation.
What about Ella and Sally?
The situation with Ella is a classic case of a boss harassing a worker, but Ella needs to be careful since she was given a direct order and told what will happen to her if she refuses. On the other hand Ella has a right to argue her case and the boss clearly jumped the gun by threatening her right away.
Sally is in her right to stay in the boss's office and continue arguing the case. She is in a grievance situation and therefore Benito cannot just dismiss her and refuse to discuss the situation. His threatening of her is also a violation of the NLRA, because a Steward cannot be threatened for doing her duty to represent workers. It is probably also a violation of the contract which says there will be no discrimination against the Union.
The Savvy Steward
"Obey Now — Grieve Later"
Here is another blatantly class biased ruling that the National Labor Relations Board issued almost immediately after the passage of the Wagner Act (the original name for what we now call the National Labor Relations Act, NLRA) in 1936. There is nothing in the law nor in the debate in Congress that states that management is superior to labor and that management orders take preference over labor agreements. Nevertheless, that is what this rule, that we are all too familiar with, states.
Workers are expected to obey management, even if what management clearly wants to do is illegal under the contract and then afterwards the workers can file a grievance.
How did this come about? The members of the National Labor Relations Board looked to past legal precedent, rather then what the new law actually said, when they made this ruling. In their minds the master-servant relationship between bosses and workers was clearly established in this country.
If we look back to the beginnings of this country, to the origins as a British colony we must deal with the horrendous specter of slavery and oppression. Here is what the Virginia law "An Act Concerning Servants and Slaves" said in 1705:
And also be it enacted, by the authority aforesaid, and it is hereby enacted, That all servants shall faithfully and obediently, all the whole time of their service, do all their masters or owners just and lawful commands. And if any servant shall resist the master, or mistress, or overseer, or offer violence to any of them, the said servant shall, for every such offence, be adjudged to serve his or her said master or owner, one whole year after the time, by indenture, custom, or former order of court, shall be expired.
The law provided this type of punishment along with whipping for servants who were poor English or Irish workers; African slaves who disobeyed their masters could be murdered and the masters were, by this law, absolved of all charges. Servants but not slaves could bring complaints against their masters for mistreatment. If the master was found guilty of mistreatment, the servant would be sold at public auction to the highest bidder.
It was this type of "law" that helped establish how workers are treated today. The role of the Steward is to prevent the boss from exaggerating what really happened, thus preventing someone from being disciplined.