Labor & Employment Law Daily Wrap Up, NAA CORNER—Insubordination: insolence in all its guises, (Sep 22, 2026)

By Thomas F. Levak, Arbitrator, J.D., N.A.A.

Most collective bargaining agreements have a discipline clause that requires just cause and often describes the offenses where more serious discipline can be imposed without progressive discipline.

The General Principle

Either implicitly or expressly under a management rights clause, management has the right to direct and manage the workforce. It follows then that either (a) noncompliance with a directive or (b) behavior which challenges managerial authority ordinarily constitutes a major or “cardinal” industrial offense. Both types of offenses are categorized as “insubordination.” However, the appropriate penalty for insubordination will depend upon a number of factors, including the type of insubordination (“gross insubordination” or ordinary insubordination); the contract’s discipline provisions; the “plant rules” in place; whether the sector is private or public; the “deference” customs within the industry or the particular employer; and the employer’s past method of dealing with the offense or other major offenses.

The Management Rights Clause

A typical management rights clause will state something to the effect of, “Management reserves the right to direct the work force.” However, even absent a management rights clause in the collective bargaining agreement, management retains that inherent right to manage and direct its operations and workforce.

The Discipline Clause

Most collective bargaining agreements have a discipline clause that requires just cause and often describes the offenses where more serious discipline can be imposed without progressive discipline. These more serious infractions usually include insubordination, gross negligence, dishonesty, intentional damaging of company property, on-the-job or on-the-premises intoxication, fighting, and sexual harassment. Sometimes the term “gross insubordination” is utilized. These offenses are commonly known within some industries as “the seven deadly sins.” Often, the proviso contains the addition, “or other equally serious offenses.”

However, even absent such a discipline clause, the “arbitral common law” states that management has the inherent right to treat major/cardinal offenses, such as “gross” insubordination through summary discharge without the need for prior progressive discipline. Employees are said to be charged with the responsibility for knowing that certain offenses will result in summary discharge. That is, where major/cardinal offenses are concerned, “foreknowledge” is implied; express “forewarning” ordinarily is not required.

Disciplinary Rules

Management has the inherent right to unilaterally promulgate reasonable written disciplinary rules that do not conflict with the just cause clause. Usually, the management rights clause will say something like, “Management has the right... to promulgate disciplinary rules.” Sometimes the rules are negotiated with the union, and sometimes the rules are mutually incorporated by reference into the collective bargaining agreement. Sometimes the collective bargaining agreement itself actually contains the rules. Typical disciplinary rules, either in an employee handbook, posted on the premises or otherwise made known to employees, often set forth detailed offenses and penalties for various offenses, including types of insubordination. For example:

• Gross insubordination. The direct refusal of a lawful order. Penalty for first offense: Discharge.

• Insubordination. Failure to comply with a lawful directive. Penalty for first offense: 14-day suspension without pay.

• Verbal or physical abuse of a supervisor on the workroom floor. Penalty for first offense: Discharge.

However, even absent such express rules, where discipline imposed does not unreasonably conflict with the just cause clause, an arbitrator will ordinarily uphold the penalty imposed, under the general principle that arbitrators do not “micro-manage” penalties; that is, if the penalty is arguably reasonable, an arbitrator will not modify it simply because he or she might have imposed a somewhat different penalty. Thus, most arbitrators will not ordinarily change a 14-day suspension to a 10-day suspension.

The Employer’s Past Method of Dealing with Insubordination

Sometimes, an employer has failed to enforce their disciplinary rules that provide for discharge or lengthy suspension for first instances of insubordination. This is the “lax enforcement” problem. In such cases, the discipline actually imposed in the past will become the de facto rules, unless and until the employer properly notifies its employees that the “old way’’ is history and the rules will be enforced as written.

For example, I was surprised to find in 1980, when I began hearing Postal Service cases, that the Service was progressively disciplining employees for insubordination. Insubordinate employees received a warning letter for their first offense; 5-day suspension for their second; 14-day suspension for their third; and discharge only for the fourth offense, if at all. They’ve since changed that practice, likely through bargaining and revised disciplinary rules promulgated to employees and uniformly enforced.

Offense No. 1: Refusal to Obey a Direct Order; the “Work, Then Grieve” Rule

Most instances of insubordination concern a flat refusal to obey a direct order and a warning that discharge will occur if the order isn’t obeyed. In such cases, even where the order might not be proper-in fact, even where it is not proper - the employee does not have the right to disobey; he or she must obey the order and challenge its propriety by filing a grievance. That is the “work, then grieve” rule. Failure to obey such an order constitutes “gross” insubordination. “The work place is not a debating society!” The typical case occurs something like this:

Supervisor Bob tells Joe, a 20-year production employee with no prior discipline on his record: “There’s a spill over here, Joe. I need you to grab a mop and clean it up.”

Joe responds, “Bob, that’s not in my job description. That’s maintenance work.”

Bob says, “Joe, I don’t have time to argue and anyway there’s no one else to do it. Get on it, please.”

Joe answers, “Bob, I just can’t do it.”

Bob then says the magic words, “Joe, I’m giving you an order to clean up the spill and if you don’t do it, you’re going to be fired.”

Joe answers, “Bob, you do what you have to do.”

Bob gets his boss, Larry, and brings him to Joe’s work site. Larry asks Joe, “Joe, Bob tells me he gave you a direct order to clean up a spill and warned you if you didn’t do it, you’d be fired, and he says you didn’t comply. Is that right?”

“Yes it is, Larry. It’s not my work.”

“Joe, you’re fired. Clean out your locker and leave the plant.”

Joe responds, “Larry, I didn’t understand. Have a heart, Larry. I just had a fight with my wife, my dog died last night, and I have a zit on my eyeball that’s killing me. I’ll do it.”

“Too bad, Joe,” Larry answers. “You’re toast. Vamoose!”

That’s what we arbitrators call a pretty clean case. 20-year Joe probably is toast. But then again, you know arbitrators. If Joe really did have a zit on his eyeball, he might get his job back.

Similarly, in an unreported award written by the eminent Carlton Snow concerning a case between Kroger Bakery and the Bakery Workers Union, (FMCS Case No. 030710-51591-7, March 29, 2004[AD1] ), a group of employees were given an order by their supervisor to remain at work and perform mandatory overtime. The collective bargaining agreement actually did not allow the supervisor to order such work. The employees were warned that if they left and did not perform the work, they would be disciplined. They left and were fired for insubordination.

Arbitrator Snow, citing the “work, then grieve” rule, upheld their terminations, stating, “Even though the employees were correct in their contract interpretation, it did not justify taking the law into their own hands... The grievance procedure is designed to handle disputes precisely like this one... If permitted to stand, their method of self-help would completely destroy the grievance procedure.”

Sometimes it’s difficult to understand why an employee refuses a direct order. For example, in a case I heard about a year ago on a nuclear site, a 10-year member of the security force was discharged for insubordination after he refused to remove his earring before shift roll call. He was the only member of the security force who wore an earring and for a number of years, the rule had been that personal jewelry did not have to be removed on the site until immediately before roll call. However, the facility changed the rule and said henceforth personal jewelry would not be worn on the premises at all if the security officer was in uniform.

The grievant knew the rule had been changed but came on the premises with the earring in his ear. Two superiors told him to take it out. He said he didn’t have to because the new rule was unreasonable, arguing that he wouldn’t actually be in uniform until he had donned his weapons, but that he would take it out before roll call. He continued to argue and refuse and ultimately was fired. At the hearing, he seemed to believe in good faith that he was being persecuted for his demeanor and lifestyle. I didn’t think so and denied the grievance. If he thought he was being wronged, he easily could have obeyed then grieved.

Non-Work Related Directives

Sometimes the directive doesn’t relate to actual work. “Joe, don’t park your car in the employee lot anymore.” Or, “Joe, don’t drink beer in the parking lot anymore.” The directives are valid because they relate to the employer’s business and involve its premises.

Off-The-Clock Directives

Sometimes an employee is given an off-the-clock directive. Bob calls Joe on the telephone while Joe is at home and on vacation and tells him, “Joe, come into work tonight at midnight. I need you to work a 12-hour shift.” The directive is valid because it relates to Joe’s job.

Sometimes an employee is given an off-the-clock directive that doesn’t directly relate to the employee’s work but is still valid. E.g., Bob runs into Joe at the bowling alley where he sees that Joe is wearing a company-issued work shirt with the company’s name on it, a shirt that’s supposed to be worn only on the production line. Bob may validly tell Joe not to wear the shirt while off the job.

No Direct Order and No Warning, But It’s Still Gross Insubordination

In some public safety workplaces, such as police, fire, and private security agencies, employees understood that they don’t disobey directives of any kind, and that they subject themselves to severe discipline or discharge if they do.

The Stupid Supervisor Rule

An employee cannot be disciplined for anything simply because he or she has a stupid, arrogant supervisor. For example, a new supervisor who had been in the military for 20 years, has no tact, and has risen far above the level of his competence begins making enemies of all his or her employees by issuing direct orders on everything under the sun and by ignoring suggestions from employees that maybe what is being ordered has been tried before and doesn’t work. (I have actually had these cases.) One day the idiot supervisor tells the employee: “The way you’re putting up the mail is inefficient. Starting today, I want you to put all the 3rd class mail before you put up the 1st class mail. And leave that business mail for tomorrow too.” The employee obeys the directive, knowing chaos will occur, as well as the wrath of the Postmaster. It is unlikely that the employee will be disciplined for obeying an incorrect order.

The Health & Safety Exception

In general, employees don’t have to obey an order that would unreasonably jeopardize their health and safety. Always remember, however, that many jobs involve inherent risks to health and safety. Power linemen often work in icy conditions. Police officers have to face aggressors with guns. But power linemen don’t have to work without their safety equipment and police officers don’t have to leave their guns in their cars when they face down an assailant with a straight razor in his hand. Similarly, Joe can’t be ordered by Larry to use a piece of arc welding equipment, an order that might result in Joe torching off his hand[AD2], if he is ordered to do so without protective equipment.

Note too that both the Taft Hartley Act and OSHA prohibit certain disciplinary measures against employees who refuse to perform under hazardous conditions.

Arbitrators do distinguish between “uncomfortable conditions” and “hazardous conditions.” In one case, an arbitrator modified discharges to 2-week suspensions for employees who went home when temperatures exceeded 100 degrees (merely uncomfortable). Pheps Dodge Aluminum Products, 52 LA 375. In another case, an arbitrator set aside disciplinary suspensions entirely when employees refused a directive to stay on the work site when temperatures had dropped below 20 degrees (unsafe). Berger Steel Co., 46 LA 1131.

The Unlawful Order Exception

Joe doesn’t have to obey an order to give another employee a big wet kiss on the ear. The order is unlawful because it violates state and federal statutes prohibiting sexual harassment and assault. Similarly, under some statutes, an order to submit to a polygraph may not be lawful. Employees who refuse an order which they know to be unlawful will likely have a successful defense if they are disciplined for insubordination.

Offense No. 2: Failure to Follow a Directive

Sometimes a supervisor gives an employee a directive to do something but no direct order is given and no warning is issued. For example, the supervisor states, “Joe, before you go home, make sure all the scrap around your machine is cleaned up.” If Joe goes home without following the directive, he’s probably just guilty of a form of “ordinary’’ insubordination. Sometimes this type of insubordination is even categorized in disciplinary rules as “failure to follow an instruction,” with a lesser prescribed penalty. In these cases, the appropriate discipline is usually something like a 7-day suspension. However, if the leaving of the scrap created a truly hazardous condition, the penalty might be more severe.

Offense No. 3: Abusive Behavior Toward a Supervisor

Physical Abuse

On-the-job. Here’s an easy one: An on-the-job physical assault, or attempted assault, on a supervisor constitutes gross insubordination because it also constitutes an assault on the supervisor’s managerial authority. That is, it’s an “assault on his or her office.” It doesn’t make any difference whether the assault is witnessed by other employees. It is also the failure to follow an implied directive prohibiting physical violence in addition to any explicit rules that apply to the situation.

Off-the-job. While at first blush it might seem that an off-the-job assault on a supervisor might not subject an employee to discipline, arbitrators rather uniformly hold that management has the right to protect supervisors from retaliatory action from disgruntled employees. Thus, an employee who follows a supervisor home and beats him up, or an employee who encounters a supervisor in a tavern and assaults him, commits an act of gross insubordination and is subject to summary discharge.

On the other hand, one arbitrator set aside a 30-day suspension issued when an employee got drunk at a company Christmas party and, spewing profanity, threw beer in a supervisor’s face. The arbitrator, noting the conduct was off-duty, also seemed to blame the company for providing the liquor and thereby running the risk of “predictable consequences.” Hopper Paper Co., 30 LA 763.

Verbal Abuse

Verbal abuse may constitute gross insubordination, lesser ordinary insubordination, or mere insolence, depending upon the circumstances. For example, an on-the-job, unprovoked, screaming tirade, accompanied by profanity, vulgarity or obscenity, directed toward the supervisor, in front of other employees, is gross insubordination. Take away one or more of those factors and the offense may only constitute ordinary insubordination. In that regard, where the profanity, vulgarity or obscenity not directed toward the supervisor diminishes the offense.

Thus, “Bob, you are a real M..........” is much worse than “M......., Bob. I just don’t see it that way.” Or, during a private conversation, it’s probably no more than simple insolence worth no more than a counseling or an oral warning if Joe quietly says something like, “Jeez, Bob, I’m not arguing with you, but sometimes you can really be an A...”

The Public Sector

Off-the-job disparaging remarks about supervisors or managers are probably protected as free speech.

Threats

Threats of violence may rise to the level of gross insubordination. Again, the circumstances govern. Was the threat real? Was it perceived as real by the supervisor? Was it accompanied by profanity, vulgarity or obscenity directed toward the supervisor?

The Provocation Defense

Some supervisors are good at provoking a response, sometimes intentionally, sometimes not. Threats, harassment (statutory or otherwise), demeaning conduct, or statements, belittling remarks, etc., all may constitute a full or partial defense to insubordination discipline grounded in abuse or threats by the employees. Again, the arbitrator will look at all the circumstances.

As an aside, the USPS and some of its unions have entered into an agreement which denounces violence in the workplace, and which also recognizes that certain conduct and statements by supervisors constitute the type of harassment that itself contributes to workplace violence by employees. In a National Arbitration decision, Carlton Snow held that the agreement is enforceable under the parties’ collective bargaining agreement and that such action by supervisors allows grievances that seek the discharge of the offending supervisor or manager, even a Postmaster. Two federal appellate courts have upheld arbitrator awards that directed the discharge of such supervisors (in one case, a Postmaster). The remedy of the discharged manager is to appeal the discharge under the federal civil service laws.

The Union Office Defense

When an employee is acting as a union representative he or she is clothed with protection from the labor statutes Thus, in a closed meeting with a foreman, the shop steward may get a little loud, may point his or her finger in a non-threatening way, and may generally represent his or her member. In fact, he or she may meet and even exceed the level of intensity displayed by the supervisor. A supervisor who gets upset with a shop steward during a meeting and starts giving orders that interfere with the steward’s ability to effectively represent his or her member will probably also find that the orders are unenforceable.

On the work floor, the shop steward probably needs to tread a little more softly so as not to disrupt things. The shop steward should also obey an order to move the discussion to a closed office[AD3].

About the author: Thomas F. Levak is an arbitrator with experience in traditional labor arbitration, employment law arbitration, ERISA trust fund arbitration and commercial arbitration. He has issued over 4,000 reasoned opinions & awards, mostly in traditional labor cases.

Companies: National Academy of Arbitrators

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