Failure to Follow Instructions/ Insubordination
As every member and representative knows, there will be times when an employee will receive an order from a management official that is questionable. Regardless of a disagreement with an order, an employee in the FAA is required to follow those instructions or orders from a superior official or face the ramifications of disobeying those instructions or orders. None the less that does not prevent the employee or union fighting the issue.
Underlying all of this is the principle of following the instruction and/or order and then grieving.
This is commonly referred to as “work now, grieve later.” In most instances discipline will stick when it involves an employee’s failure to follow instructions or insubordination. Generally, there are two exceptions to disobeying an instruction or order from an authorized supervisor. Orders that would either place the employee in a clearly dangerous situation or cause the employee irreparable harm could be seen as exceptions. This is an extremely high standard. Without such a risk to the health and safety of an individual, any failure to comply with an order may be viewed as inappropriate self-help on the part of an employee. Any concerns regarding the appropriateness of an order should be addressed through the Parties’ collective bargaining agreement.
There are many different facets to failing to follow orders. First, it is important to note that there is a clear distinction between “failure to follow instructions” and “insubordination.” According to the FLRA and MSPB case law, in order to establish a charge of insubordination, the Agency must establish intent on the part of the employee. Insubordination is the “willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed.” Conversely, the Agency does not have the burden of showing intent to successfully bring a charge of failure to follow instructions. Instead, the Agency must merely prove that proper instructions were given to the employee and the employee failed to follow those instructions. It is not necessary for the Agency to show that the failure to follow an instruction was intentional.
The FAA has specifically covered the issue of following Agency orders through Human Resources Policy Manual (HRPM) ER 4.1, Standards of Conduct. FAA employees are required to “respond promptly to, and fully comply, with directions and instructions received from their manager or other management officials.” The FAA, most likely in recognition of the differences between insubordination and failure to follow instructions, has established two different penalties in the FAA’s Human Resources Operating Instruction (HROI), Table of Penalties. The charge of “Failure or delay in carrying out orders, directions, assignments, instructions etc., given by a superior official, either permanently assigned or in an acting capacity has the following possible penalties:
- First offense – Reprimand to a 14 day suspension;
- Second offense – 14 day suspension to removal;
- Third offense – Removal.
The charge of “Insubordination; refusal to carry out orders, directions, assignments, instructions etc., given by a superior official, either permanently assigned or in an acting capacity” has the following possible penalties:
- First offense – 14 day suspension to removal;
- Second offense – 30 day suspension to removal;
- Third offense – Removal.
When dealing with a charge of either failure to follow an instruction or insubordination, or any other charge, it is important to note the manner in which the Agency administers ER 4.1 and the Table of Penalties; the Agency considers a “second” and “third” offense as such, regardless of whether or not a previous action was even remotely related to any subsequent action. For example, if an employee received a discipline a year ago for inappropriate use of a Government credit card, then received a discipline for failure to follow instructions, the Agency will consider that a second offense.
The Union has also taken issue with how the Agency often uses the charge of “failure to follow instructions” to add to the list of infractions rising from a single event. For example, an employee who is charged with misuse of sick leave may also be charged with failure to follow instructions. The Agency supports this piling on of charges by alleging that the employee has been given instructions on the appropriate manner to utilize sick leave and, thus, any failure to comply with the mandated process also constitutes a failure to follow orders. The Union has generally been successful in convincing third parties that such additional charges are unwarranted.
When dealing with a charge of failure to follow instructions, the Agency must prove 1) that a responsible Agency official gave a clear and proper direction to an employee and 2) that the employee failed to comply with the direction or order. The Agency’s burden is to establish the employee’s noncompliance; it is not necessary for the Agency to establish the intent to disobey the order. In fact, there have been cases where even negligent disregard of an employee has been sufficient to uphold discipline for failure to follow instructions.
The harsher charge of insubordination is somewhat more nuanced. Employees are generally required to follow orders or instructions first and raise any complaints after compliance. While there is a great deal of deference to an employer who is faced with an employee who has willfully refused an order, the Agency must still establish the intent. It is important to note that the following circumstances have been found to be insufficient to establish intent: when an employee is actually unable to comply with an order; when there has been a sincere, but unsuccessful, attempt to comply with an order; when the failure to comply is caused by a failure in the necessary equipment; and when the order or direction is found to be insufficiently clear. On the other hand, the following circumstances have been found to constitute insubordination: where there is unjustified delay in completing an assignment, where the employee refuses to answer a supervisor’s questions in connection with a work assignment; or the refusal to attend a training session. As stated previously, in general, FAA employees must operate with a “work now, grieve later” understanding.
Ultimately, every FAA employee must be mindful of the orders and instructions provided by FAA management. The assumption, as a Federal employee, is that such orders and instructions will be met with compliance. If there is ever a question about compliance with an order, follow the “work now, grieve later” doctrine and then contact your NATCA representative.
