By: Joseph Hegedus, Esq.
A recent case that caught my eye seemed worth sharing.
This case was decided on June 8, 2017 by the Cuyahoga County Court of Appeals. The case is captioned, City of Cleveland v. Mun. Foreman & Laborers’ Union Local 1099, 2017-Ohio-4188, and it concerns, inter alia, the definition of insubordination.
The case came to the Court of Appeals due to the City’s appeal of the trial court’s refusal to vacate the arbitrator’s award which had reinstated a terminated employee who was accused of insubordination.
The relevant, abbreviated facts of the underlying matter that led to the employee’s termination indicated that the employee had fifteen and one-half years of service with the city and had a one-day suspension and two thirty-day suspensions in the two years prior to the incident at issue.
In this particular case, the City implemented an attendance policy that required employees to call in sick to a dedicated phone line at least one hour prior to their scheduled starting time. Also, a failure to call and report off was considered absence without leave and employees were not permitted to work if they reported more than one hour after the start of their shift.
On the date in question, the employee timely called, more than one hour before her 7:00 a.m. starting time, requesting four hours of sick leave.
She then reported to work at 9:40 a.m. and requested a work assignment from her supervisor.
The supervisor told her not to clock in and to go home, due to his interpretation of the attendance policy to the effect that she was more than one hour late for her shift.
The employee refused to leave, at which point, she was told that she was trespassing and that the police would be called if she did not depart from the worksite. The employee, once again, refused to leave prompting the supervisor to call the police. Subsequently, the employee finally departed, just prior to the arrival of the police.
Disciplinary charges were preferred against the employee by the City. After a pre-disciplinary conference, the employee was terminated for a litany of rule violations; the most serious of which was insubordination. The employee appealed the grievance to arbitration.
The Court indicated that the issue before the arbitrator was whether the employee was terminated for just cause and, if not, what was the proper remedy?
The Court then summarized the arbitrator’s decision, at Paragraphs 10 & 11, as follows:
In his decision, the arbitrator found that Pierson had been terminated for insubordination. He noted that to prove an employee was insubordinate, the employer must demonstrate: 1) the employee’s refusal to obey was knowing, willful, and deliberate; 2) the order was explicit and clearly given so that the employee understood its meaning and its intent as a command; 3) the order was reasonable and work related; 4) the order was given by someone in authority; 5) the employee was made aware of the consequences of failing to perform the work or follow the directive; and 6) if practical, the employee was given time to correct the allegedly insubordinate behavior.
The arbitrator found that Pierson’s refusal to leave the premises and go home was “knowing, willful, and deliberate.” “Put simply,” the arbitrator found, “the grievant’s actions were a refusal to obey” an order that was “explicit” and “clearly given,” and that Pierson understood to be a command. Further, the arbitrator found that the order was reasonable and work related, and that Pierson was given time to comply with the order. Nevertheless, the arbitrator found that Pierson was not made aware of the disciplinary consequences of not following the order, i.e., that she would be subject to discipline if she did not follow Anderson’s order. Accordingly, the arbitrator concluded that the city had not proved that Pierson was insubordinate, and therefore, had no just cause to discharge her. The arbitrator ruled that Pierson should be reinstated to her former position and that she was entitled to back pay and benefits.
In upholding the arbitrator’s decision, the Court noted that the collective bargaining agreement did not contain definitions for “just cause” or “insubordination.” As a result, the arbitrator was justified in giving the terms their ordinary and plain meaning by properly looking to the industrial common law for guidance in interpreting those terms.
After reviewing the relevant precedent relied on by the Arbitrator, the Court upheld the arbitrator’s decision by concluding, at Paragraphs 24 & 29, as follows:
It is apparent, therefore, that under well-established principles of arbitral jurisprudence, whether an employee received a warning of the consequences of his refusal to comply with a management directive is an element to be considered in determining whether there was just cause to discipline the employee for insubordination. Accordingly, the arbitrator’s finding in this case that the elements of insubordination include a requirement that the employee be warned of the consequences of his or her refusal to comply was consistent with well-established arbitral precedent, and is not a basis for vacating the award. . . .
Although, as the city points out, some arbitrators may conclude that forewarning of the consequences of failure to comply with a supervisor’s order is not required because “insubordination is so serious that any employee in industrial society may properly be expected to know already that such conduct is heavily punishable,” In re Ent. Wire Co., 1996 Lab. Arb. LEXIS 78 (Mar. 28, 1966), the arbitrator deciding this case employed a well-known and widely used definition of insubordination, developed from decades of arbitration decisions, that requires notice of the consequences of failing to follow the directive in order to find just cause for termination. We cannot say that the arbitrator exceeded his authority in doing so. Where parties to a collective bargaining agreement leave terms undefined, “they risk the arbitrator’s looking ‘outside the CBA for guidance in defining, interpreting, and applying that phrase.’” Summit Cty. Children Servs. Bd., 113 Ohio St.3d 291 at 296, 2007-Ohio-1949, 865 N.E.2d 31, quoting Conoco, Inc. v. Oil, Chem. & Atomic Workers Internatl. Union, 26 F.Supp.2d 1310, 1317-1318 (N.D.Ok.1998). That is exactly what the arbitrator did here.
While this case is notable primarily due to the definition of insubordination relied on by the arbitrator, it would be foolish to ignore the Court’s observation that some arbitrators might not adhere to the above-definition, as a result of the seriousness of certain allegations of insubordination.
Consequently, it is most often wise to adhere to the age-old arbitral adage, when it comes to responding to an order from a supervisor, “obey now and grieve later,” rather than engage in the type of conduct participated in by the employee in this case.
Due to the seriousness and potential complexity of any allegation of insubordination, always consult your OPBA representative concerning the facts of your individual situation.
 The employee was given a one-day suspension for conduct unbecoming and insubordination and two separate thirty-day suspensions for, among other things, unethical conduct on duty and workplace violence.
 Of course, there are exceptions to the general rule in cases of illegal and/or unsafe orders.