The grievant, a senior Water Meter Reader, was issued a three calendar day suspension / two working day suspension.  The charge was “insubordination” for failing to follow a verbal directive given to him to sort his pink job sheets by category and place them on a work table in the appropriate order with other such work sheets.  In describing the incidents, the supervisor writes, in part:

“On Friday, October 31, 2003 at 12:45 p.m. Mr. Spam returned his assignment for the day.  I requested that he place his machine on the counter and sort the pink sheets on the designated table.  He said it was not his job and not in his job description.  I asked him to help out and sort them according to the labels on the table and that the other meter readers had sorted their work and placed them on the table.  I handed the work to him.  He stated that he would take the work and was going to place it on the table without sorting it because it was not in his job description.  He then proceeded to do just that and walked out the door.”

The grievant did not dispute this argument of the event with the exception that he did dispute that a table had been set up in the office for sorting.  He claimed that in-office sorting by meter-readers was not standard procedure and that he had paper clipped his work orders into categories.  This he felt was more than other readers generally did.

The Water and Sewage Department Discipline Guidelines defined insubordination as:

a.)           Refusal or failure without good cause to accept and perform job assignments as directed and when directed.

The arbitrator proceeded to outline definitions of insubordination from Elkouri & Elkouri, Oxford English Reference Dictionary, and Black’s Law Dictionary and ruled that the grievant was “clearly insubordinate.”  However, the grievance award was:

“The grievance is granted.  The grievant’s three calendar day / two working day suspension is set aside and the grievant shall receive back pay and benefits, and shall be made whole.”

Even though the grievant in this case was insubordinate, the grievance was granted because the advocate for the Union was able to establish a key flaw in the employer’s case and the arbitrator picked up on this argument.  There are two parts of an insubordination case that must be proven with most arbitrators.  The directive request or order must be clear and unequivocal and the employee must be put on notice that failure to comply will result in discipline.  In this case the arbitrator wrote:

Put simply, to withstand just-cause analysis, a finding of insubordination requires very clear instructions and a warning of serious discipline.  The element of warning is necessary to afford the employee an opportunity for reflection and correction.  See e.g., City of Gary Human Relation Commission and AFSCME Council 62, Local 409, 120 LA 244 (Deitsch 2004).

The requirement of giving an employee “explicit statements about the penalty for failure to comply” has been long established in the law of arbitration.  See e.g., Micro Precision Gear & Machine Corp., 31LA575, 579-80 which dates back to 1958.